In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

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

TRYSTAN SANCHEZ, by and *

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

SANCHEZ and JENNIFER * Special Master Christian J. Moran

SANCHEZ, *

* Filed: March 17, 2023

Petitioners, *

v. * Enlargement of Time;

* Growth Rate

SECRETARY OF HEALTH *

AND HUMAN SERVICES, *

*

Respondent. *

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

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

CA, for petitioners;

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

respondent.

PUBLISHED ORDER DENYING MOTION FOR LEAVE TO FILE 

OUT OF TIME AND RULING FINDING GROWTH RATE1

Mr. and Ms. Sanchez are entitled to compensation for the harm a vaccination 

caused their son, Trystan. Compensation includes unreimbursable expenses for 

various non-medical items. 

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

undersigned is required to post it on the United States Court of Federal Claims' website in 

accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal 

Management and Promotion of Electronic Government Services). This means the order will be 

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

petitioners have 14 days to identify and move to redact medical or other information, the 

disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the 

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

redact such material before posting the decision.
2

The parties disagree about the growth rate for non-medical items. One 

party, the petitioners (Mr. and Ms. Sanchez) submitted evidence. The other party, 

the respondent (the Secretary of Health and Human Services) has not submitted 

evidence. The Secretary did not submit evidence because the Secretary failed to 

comply with scheduling orders. As such, the present order explains why the 

Secretary’s most recent motion to enlarge a deadline is DENIED. In the absence 

of evidence from the Secretary rebutting the evidence the Sanchezes presented, the 

Sanchezes’ evidence is credited. Accordingly, the growth rate for non-medical 

items is six percent. 

Procedural History regarding the Submission of Reports from Economists

The Sanchezes filed their petition in 2011, making this case the second 

oldest case currently pending in the Office of Special Masters. The Federal Circuit 

ruled that the Sanchezes are entitled to compensation. After the mandate was

issued, the Court of Federal Claims remanded the case to determine damages. 

Order, issued Aug. 16, 2022. 

The first order regarding damages provided preliminary guidance regarding 

discount rates and growth rates. Here, the undersigned proposed that 4 percent

could serve as an appropriate growth rate for non-medical items. But, the parties 

did not have to accept this proposal. Order, issued Aug. 30, 2022, at 5. Both 

parties were instructed to submit status reports regarding the growth rate.2 The 

deadline for the status report from the Sanchezes was September 9, 2022, and the 

deadline for the Secretarywas September 16, 2022. Id. at 6, 7.

The Sanchezessubmitted their status report, early, on September 7, 2022. 

There, the Sanchezesindicated additional research was required due, in part, to the 

increase in the cost of services after the Covid pandemic. Pet’rs’ Status Rep., filed 

Sept. 7, 2022, at 3.

The Secretary did not present his view on the date required. As such, the 

Secretary was reinstructed to comment on the proposed rates. Order, issued Sept.

2 While the August 30, 2022 order proposed discount rates and growth rates, ensuing 

orders did not always use the term “growth rates.” However, a “discount rate” necessarily entails 

a growth rate as a net discount rate reflects the rate at which an investment would increase and 

the price increase (or growth rate) of a cost. See Petronelli v. Sec’y of Health & Hum. Servs., 

No. 12-285V, 2016 WL 3252082, at *4 (Fed. Cl. Spec. Mstr. May 12, 2016); Childers v. Sec’y 

of Health & Hum. Servs., No. 96-194V, 1999 WL 159844, at *1 (Fed. Cl. Spec. Mstr. Mar. 5, 

1999). Any imprecision appears not to have contributed to the Secretary’s failure to submit a 

report from an economist on time.
3

20, 2022. Without discussing why his submission was late, the Secretarystated 

that discount rates are set on a “case-by-case basis” and that expert testimony 

might be required. Resp’t’s Status Rep., filed Sept. 22, 2022.

The parties’ submissions and the current economic situation suggested that 

resolving the appropriate growth rate might be a difficult question. Order, issued 

Sept. 27, 2022, at 1. The parties were informed that if they could not agree upon 

an appropriate discount rate, they would be required to submit expert reports on the 

topic simultaneously. Id. The “undersigned propose[d] to resolve the discount rate 

sooner rather than later.” Id.

The September 27, 2022 order was discussed in the first status conference 

regarding damages, held on October 13, 2022. The Secretary did not oppose the 

simultaneous submission of expert reports. To allow time for negotiations and to 

ascertain more information about the parties’ positions, the undersigned directed 

the Sanchezesto file a status report by November 30, 2022. Order, issued Oct. 13, 

2022. 

The Sanchezesdisclosed that they were proposing a growth rate of 6 percent

for non-medical items. Pet’rs’ Status Rep., filed Nov. 30, 2022, ¶ 3. The same day 

that the Sanchezessubmitted their status report, the undersigned stated: “If the 

parties do not agree to discount rates, the parties will be obligated to submit reports 

regarding discount rates simultaneously by Wednesday, February 1, 2023. 

Because the parties are aware of this deadline, the undersigned does not intend to 

extend the deadline as a matter of routine.” Order, issued Nov. 30, 2022, at 2. 

This was the first warning. The Secretary was also ordered to submit a status 

report as to whether the proposal from the Sanchezes was acceptable. Id.

The Secretary advised that the parties were attempting to resolve any 

differences regarding the growth rates. Resp’t’s Status Rep., filed Friday, Dec. 16, 

2022. On the next business day, the undersigned directed the Secretary to provide 

specific numbers for various categories of growth rates. Order, issued Dec. 19, 

2022. The undersigned added: “if the parties have not reached an agreement 

regarding discount rates, both parties are required to submit reports from experts 

on Wednesday, February 1, 2023. The undersigned does not anticipate extending 

this deadline as a matter of routine.” Id. This was the second warning.

As instructed, the Secretarydisclosed that he proposed a growth rate of 4

percent for non-medical items. Resp’t’s Status Rep., filed Dec. 23, 2022. In 

response, the undersigned stated: “In accord with the previous orders, both parties 

are required to submit reports from experts regarding growth rates on Wednesday, 
4

February 1, 2023. The undersigned does not anticipate extending this deadline as a 

matter of routine.” Order, issued Dec. 29, 2022. This was the third warning.

On Friday, January 20, 2023, the Sanchezes advised that they are consulting 

an economist regarding the growth rate for non-medical items and services. Pet’rs’

Status Rep., filed Jan. 20, 2023. The next business day, the undersigned stated: 

“Previous orders have established that the deadline for both parties to file expert 

reports is Wednesday, February 1, 2022. This deadline remains in effect. The 

undersigned does not intend to extend the deadline absent a showing of good 

cause.... The failure of either party to submit expert reports regarding [growth] 

rates by February 1, 2023 is likely to be construed as a waiver of any argument 

regarding [growth] rates.” Order, issued Jan. 23, 2023, at 1. This was the fourth 

warning.

Despite being alerted four times that the deadline would not be extended, the 

Secretary requested additional time to file a report from an economist on January 

30, 2023. The Secretary submitted this motion two days before the February 1, 

2023 deadline, which was announced in the November 30, 2022 Order. The 

Secretary’s motion did not set forth with any persuasive specificity the reason that 

would justify extending the deadline. Accordingly, adjudication of the motion was 

deferred until after a status conference. Order, issued Jan. 30, 2023.

In a February 2, 2023 status conference, the Secretary’s counselstated that 

although the economist whom the Secretary had retained, PatrickKennedy, had 

indicated that he would meet the February 1, 2023 deadline, the Secretary’s

attorney learned upon her return from vacation that he could not. The obstacles 

that prevented Dr. Kennedy from fulfilling the obligation to submit a report by the 

February 1, 2023 deadline were not presented in the status conference. In any 

event, the asserted explanation did “not constitute ‘good cause.’” Order, issued 

Feb. 2, 2023, at 1, citing Vaccine Rule 19(b). Nevertheless, the Secretary was 

afforded an additional week. “If the report is not filed, barring unusual 

circumstances, the undersigned will move forward in the absence [of] respondent’s 

report.” Id.

Within hours of conclusion ofthe February 2, 2023 status conference, the 

Sanchezessubmitted a report from an economist, Thomas Young. Dr. Young 

proposes a growth rate of 6 percent for non-medical items. Exhibit 221.

On the second deadline for the Secretary to file an expert report, the 

Secretary renewed his motion for additional time for Dr. Kennedy to submit a 

report regarding growth rates. Resp’t’s Memo., filed Feb. 10, 2023. The Secretary
5

provided no information as to why Dr. Kennedy could not present a report by 

February 10, 2023. Instead, respondent’s counsel asserts “Despite best efforts, 

Respondent’s economist’s report is not yet complete.” Id. at 2. However, the 

nature of these efforts was not explained at all. Accordingly, the Secretary’s 

renewed motion was denied. Order, issued Feb. 13, 2023.

In conjunction with the renewed motion, the Secretary also presented a 

memorandum, consisting of attorney arguments against Dr. Young’s proposal of a 

6 percent growth rate for non-medical items. The Sanchezes were permitted an 

opportunity to respond to these criticisms. Id.

The Sanchezes responded to the Secretary’s February 10, 2023 

memorandum by defending the opinion of Dr. Young. Pet’rs’ Resp., filed Feb. 27, 

2023. 

On Friday, March 3, 2023, the Secretary filed a third motion regarding the 

deadline for the submission of an economist’s report. Recognizing that the 

previous two motions had been denied, the Secretary sought leave to file Dr. 

Kennedy’s response as exhibit R. 

The Sanchezes opposed this motion in a response filed the next business 

day, Monday, March 6, 2023. The Secretary did not submit a reply within the time 

permitted by the Vaccine Rules. Accordingly, the issues are ready for 

adjudication. 

Two issues require resolution. First, has the Secretary established good 

cause to extend the deadline for a report from an economist? Second, how does 

the evidence regarding growth rate preponderate? 

Additional Time Has Not Been Justified

Although the Secretary does not cite any caselaw regarding the enforcement 

of compliance with scheduling orders, the Federal Circuit and the Court of Federal 

Claims have provided guidance. When a party fails to comply with a scheduling 

order due to a lack of diligence, the question of prejudice to the other party has 

much less significance. O2 Micro Internat’l Ltd. v. Monolithic Power Systems, 

Inc., 467 F.3d 1355, 1368 (Fed. Cir. 2006) (holding a district court did not abuse 

its discretion in finding a lack of diligence did not support allowing a late 

amendment to a party’s infringement contentions). Adherence to and enforcement 

of scheduling orders deter future dilatory behavior. Trilogy Communications, Inc. 

v. Times Fiber Communications, Inc., 109 F.3d 739, 745 (Fed. Cir. 1997) (holding 

a district court did not abuse its discretion in striking an expert’s report filed after 
6

its due date); Pac. Gas & Elec. Co. v. United States, 82 Fed. Cl. 474, 479 (2008) 

(awarding attorneys’ fees for a violation of a protective order). Late compliance 

does not necessarily cure a lack of diligence. Sterling-Kates Properties Joint 

Venture v. United States, 5 Cl. Ct. 398, 400 (1983). 

Here, the Secretary has not established diligence that justifies the late 

submission of a report from an economist. Preliminarily, almost all the potential 

explanations for why the Secretary did not submit a report until March 3, 2023 are 

contained within his March 3, 2023 motion. The Secretary’s previous two motions 

filed on January 30, 2023 and February 10, 2023 were noticeably sparse. 

In any event, the Secretary appears to offer potentially two explanations for 

his late submission of a report from an economist. The first might be a potential 

confusion regarding imprecision in various submissions regarding discount rates 

and growth rates. Resp’t’s Mot. for Leave, filed Mar. 3, 2023, at 1-2. Certainly, 

the undersigned’s orders could have been clearer. However, the Secretary has not 

developed an argument that the Secretary was confused about the issues an 

economist was required to address by February 1, 2023. In the undersigned’s 

experience, when the parties disagree over discount rates and growth rates, each 

party retains a single economist to opine about discount rates and growth rates. 

The undersigned has never encountered a situation in which a party retained one 

economist to address discount rates and a second economist to address growth 

rates. To the extent that the Secretary has attempted to justify a failure to comply 

with the scheduling orders on the lack of clarity in those orders, that argument is 

unpersuasive. See Resp’t’s Mot. for Leave at 2 n.1 (“In retrospect, to avoid 

confusion as to the scope of the expert reports, respondent should have requested 

clarification from the Court.”) 

The Secretary grounds the failure to comply with the scheduling orders on 

Dr. Kennedy’s busyness. Resp’t’s Mot. for Leave at 5-6. But, the story the 

Secretary tells lacks some details and is not persuasive. The account should begin 

with the Secretary’s September 22, 2022 status report. At that early date, the 

Secretary recognized that expert testimony could be required. In the October 13, 

2022 status conference, the parties were afforded some time to reach an agreement 

regarding discount rates and growth rates. Yet, the parties knew that if they did not 

agree, they would be required to submit expert reports simultaneously as set forth 

in the September 27, 2022 order. The Secretary’s March 3, 2023 motion omits this 

chronology. As such, the date on which the Secretary took any steps to obtain an 

economist’s report is unknown. 
7

The Secretary did not state when he had retained Dr. Kennedy. But, at some 

unspecified date, the Secretary “deferred having Dr. Kennedy begin working on 

the case.” Resp’t’s Mot. for Leave at 5. When to direct Dr. Kennedy to begin 

work was the Secretary’s choice. Apparently, the Secretary waited too long. The 

Secretary represents that Dr. Kennedy has many responsibilities: 

He is a managing partner of Torrey Partners and oversees 

approximately 20 employees. In addition to retentions 

within the Program, Dr. Kennedy is retained in civil 

litigation matters ranging from intellectual property 

disputes to personal injury and wrongful death claims. At 

any given time, Dr. Kennedy is the retained damages 

expert on 50+ cases. Between December 23, 2022, 

through March 2, 2023, Dr. Kennedy has testified at 

deposition approximately seven times, testified in trial 

approximately five days, and executed approximately ten 

damages reports.

Id. at 6. 

These circumstances seem routine and foreseeable. Indeed, the busyness of 

some professionals is one reason the undersigned advised the parties as early as 

November 30, 2022 that routine motions for enlargement should not be anticipated. 

The Secretary hasnot explained how he planned to meet the deadline with Dr. 

Kennedy. If the Secretary knew in early December that other professional 

responsibilities would interfere with the Secretary’s requirement to file a report by 

February 1, 2023, then the opportunity to address those matters was in early 

December, shortly after the November 30, 2022 scheduling order. 

The Sanchezes draw a contrast in how the parties approached the deadlines. 

“As anyone who works routine in this Vaccine Program knows, delays are 

epidemic. Respondent rarely meets a deadline and seems to treat them as 

‘optional.’” Pet’rs’ Resp., filed Mar. 6, 2023, at 2. In contrast, the Sanchezes were 

aware that “this Court made it very clear that the deadline regarding expert reports 

was not going to be extended absent good cause. Hence, Petitioner[s] continue to 

assure [their] economist expert report was ready by the deadline.” Id.

As O2 Micro Internat’l explains, the predominant inquiry regarding a lack of 

compliance with scheduling orders is “diligence.” 467 F.3d at 1368. The 

Secretary has not shown sufficient diligence. The Secretary has not stated: (1) 

when he retained Dr. Kennedy, (2) when he informed Dr. Kennedy about the 
8

February 1, 2023 deadline, (3) any efforts to confirm that Dr. Kennedy was on 

schedule to meet the February 1, 2023 deadline, and (4) whether any previously 

unforeseen events prevented Dr. Kennedy from meeting the deadline. The 

Secretary has not presented a contract documenting when he retained Dr. Kennedy. 

The Secretary has not shown any emails reminding Dr. Kennedy of the deadline 

and confirming his anticipated compliance with the deadline. In light of the lack of

diligence, any prejudice to the Sanchezes is much less important. 

An enforcement of scheduling orders deters future dilatory behavior. 

Trilogy Communications, 109 F.3d at 745. Thisfactor plays a role in denying the 

Secretary’s motion for additional time. If the Secretary were to cure a lack of 

compliance with scheduling orders by filing materials at the Secretary’s 

convenience, then who is setting the schedule? While special masters typically do 

not catalog every instance in which a party fails to act within a deadline, the 

Secretary and the experts whom he retains often seek additional time. As long as 

this slowness in litigation is tolerated, the Secretary is likely to continue his 

practice as usual. But, as the undersigned has attempted to communicate 

throughout the case upon remand from the Federal Circuit, the Sanchez case merits 

diligent attention because (a) the Sanchezes are entitled to compensation and (b) 

the case is more than a decade old. Thus, the Secretary was aware that 

enlargements of time based upon routine reasons were unlikely to be accepted. 

For these reasons, the Secretary’s March 3, 2023 motion for leave to file an 

expert’s report is DENIED. The Clerk’s Office is instructed to strike Exhibit R. 

Reasonable Growth Rate

While life care planners can estimate the cost for current services, Trystan

will receive some services for many years into the future. Thus, awards for future 

costs are expanded to reflect anticipated increases in costs. See Delozier v. Sec’y 

of Health & Hum. Servs., No. 89-49V, 1990 WL 270202, at *7 (Cl. Ct. Spec. Mstr. 

Oct. 10, 1990) (finding for two non-medical items an appropriate growth rate was 

5.25 per year). The Sanchezes, as petitioners, bear the burden of establishing a 

reasonable growth rate. 

Here, the Sanchezes have presented some evidence in the form of a report 

from Dr. Young. Dr. Young earned a Ph.D. in finance and economics from the 

University of Utah in 2009. Exhibit 222 (curriculum vitae). For approximately 

twenty years, he has worked as a “chief economist,” whose duties include 

“macroeconomic analysis and forecasting.” Id. The Secretary has not challenged 
9

Dr. Young’s qualifications to opine on growth rates. See Resp’t’s Memo., filed 

Feb. 10, 2023. 

Dr. Young concludes that “a more applicable inflation measure for the nonmedical services likely to be experienced by Trystan would be in the 6% range, up 

from the current 4% estimate.” Exhibit 221 at 10-11. Although the report contains 

more details, the crux of Dr. Young’s opinion is that previous estimates that nonmedical services would increase by four percent per year were appropriate when 

inflation was expected to be about two percent per year. But, now that “broader 

inflation expectations [are] 50% higher today, the 4% estimate should also be 

adjusted forward by at least 50% to 6%.” Id. at 5. To ground his opinion as to 

why inflation is likely to be higher, Dr. Young identifies factors such as deglobalization, non-tradeable goods / services, and demographic transformation. Id.

at 5-8. 

Through counsel, the Secretary has presented two types of objections. The 

first type is that awarding a six percent growth rate for non-medical items would be 

“without precedent.” Resp’t’s Memo., filed Feb. 10, 2023, at 4. Whether this 

statement is accurate seems immaterial. As the Secretary stated very early in the 

damages process, a discount rate is assessed on a “case-by-case basis” based upon 

expert testimony. Resp’t’s Status Rep., filed Sep. 22, 2022. While the Secretary 

cited numerous cases in which special masters have accepted growth rates of four 

percent, the Secretary has not identified any reasoned opinions on this topic within 

the last three years that account for recent changes. See Pet’rs’ Resp.,filed Feb. 

27, 2023 at 2. Thus, the evidentiary value of those previous adjudications is 

minimal when the Sanchezes have presented different evidence. 

The second type of objection that the Secretary has raised through counsel is 

more evidentiary in that they attempt to challenge some of the foundations for Dr. 

Young’s opinion. SeeResp’t’s Memo., filed Feb. 10, 2023, at 9-12. The 

Sanchezes’ attorney, in turn, attempts to parry them. See Pet’rs’ Resp., filed Feb. 

27, 2023, at 2-5. 

At the end of the day, the record contains some evidence supporting a 

growth rate of six percent and no evidence in favor of a different growth rate. Dr. 

Young has provided a reasonable explanation of why interest rates can be expected 

to remain higher than previously and his opinion, overall, is persuasive. Thus, the 

evidence preponderates in favor of finding that an appropriate growth rate is six 

percent. 
10

This finding is based upon the evidence in the record. If the Secretary had 

wanted to present evidence regarding growth rates, the Secretary had a full and fair 

opportunity to present that evidence. See Vaccine Rule 3(b)(2). The Secretary 

knew no later than November 30, 2022 that the Sanchezes were proposing a 

different growth rate. To the extent that the evidence has come from only one 

party, the Secretary is responsible for that lapse. 

Conclusion

Both parties were informed of the deadline for submitting reports from an 

economist and were informed that the deadline would not be extended as a matter 

of routine. Both parties were reminded of the deadline multiple times. 

One party presented evidence; the other did not. The submitted evidence is 

credited. 

1. Respondent’s March 3, 2023 motion for leave to file a report out of 

time is DENIED. 

2. The Clerk’s Office is directed to STRIKE the document labeled as 

Exhibit R. 

3. The growth rate for non-medical items is six percent. 

IT IS SO ORDERED.

s/ Christian J. Moran

Christian J. Moran

Special Master