# SANCHEZ v. SECRETARY OF HEALTH AND HUMAN SERVICES > United States Court of Federal Claims · March 18, 2026 URL: https://www.frixlaw.com/law-library/cases/11277882 ## Case - **Court:** United States Court of Federal Claims - **Decided:** March 18, 2026 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Judges:** Christian J. Moran - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11277882 ## How later opinions describe it (automated extraction) - noting that a special master reopened the record for additional evidence on remand - stating that whether to consider reopening entitlement, the “paramount test is the nature of the proffered new evidence” - noting that, “At a minimum, the onus of the delay in production can be shared equally between the parties” - reversing special master's decision that petitioners were not entitled to compensation - stating a “trial court makes a credibility determination in order to assess the candor of a fact witness” ## Opinion text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11277882. Public record. Not legal advice.