In Re T.S., by and through his parents, GERMAIN SANCHEZ, JENNIFER SANCHEZ v. Dep’t of Health & Hum. Servs., 34 F.4th 1350 Fed. Cir. 2022 . Case: 25-114 Document:…

NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
In Re T.S., by and through his parents, GERMAIN
SANCHEZ, JENNIFER SANCHEZ,
Petitioners
______________________
2025-114
______________________
On Petition for Writ of Mandamus to the United States
Court of Federal Claims in No. 1:11-vv-00685-EDK, Chief
Judge Elaine Kaplan.
______________________
ON PETITION
______________________
Before TARANTO, STOLL, and STARK, Circuit Judges.
STARK, Circuit Judge.
O R D E R
In 2022, petitioners were granted entitlement to com-
pensation under the National Childhood Vaccine Injury
Act. But a protracted dispute over whether to now reassess
the issue of entitlement based on previously undisclosed
medical records has left the claim in limbo.
At present, the Special Master intends to hold a hear-
ing over the failed disclosure and is considering petitioners’
request to excuse claimant’s mother from testifying, which
purportedly will aggravate her mental-health condition.
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IN RE T.S. 2
To assess that request, the Special Master ordered peti-
tioners to turn over the claimant’s mother’s therapist’s
treatment records. Arguing that those records are privi-
leged, petitioners seek to challenge that ruling either as a
direct appeal or in a petition for mandamus relief.
We hold that petitioners cannot appeal from the inter-
locutory order of the Special Master. Viewing this as a pe-
tition for a writ of mandamus, we conclude that petitioners
have not met the demanding standard for relief.
I.
This is the third time this case, brought by Germain
Sanchez and Jennifer Sanchez, on behalf of their son T.S.,
has been before us. Most recently, this court concluded
that petitioners were entitled to compensation under the
Vaccine Act on the existing record and remanded to the as-
signed Special Master of the United States Court of Fed-
eral Claims to decide damages.1
On remand, petitioners, as part of documenting their
expenses, produced medical records that had not been dis-
closed during the entitlement phase of the case. Arguing
that this newly discovered evidence negates the basis on
which this court had determined T.S.’s injuries resulted
from a vaccination, the government moved to reopen the
issue of entitlement to compensation. That motion, filed in
August 2023, is still pending before the Special Master.
The Special Master has attempted to schedule a hear-
ing at which Mrs. Sanchez and counsel would be expected
to testify why the documents were not previously produced
to the government, but that hearing has been delayed.
Most relevant here, after petitioners argued Mrs. Sanchez
should not testify because it could aggravate a mental
1 Sanchez v. Dep’t of Health & Hum. Servs., 34 F.4th
1350 (Fed. Cir. 2022).
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IN RE T.S. 3
health condition, the Special Master invited Petitioners to
file a motion to excuse her from having to provide live tes-
timony and a certified list of treatment records. Appx267,
277.
In response, petitioners so moved and submitted a let-
ter from Mrs. Sanchez’s therapist while also seeking a pro-
tective order from having to produce Mrs. Sanchez’s
treatment records because, they asserted, the records were
protected by the therapist-patient privilege. Appx285. On
October 28, 2024, the Special Master denied petitioners’ re-
quest to excuse them from having to turn over the treat-
ment records, agreeing with the government that Mrs.
Sanchez had waived any privilege over the treatment rec-
ords by placing her mental health at issue. Appx5–7.
The Special Master ordered petitioners to file Mrs.
Sanchez’s records by November 26, 2024. Appx7. On De-
cember 17, 2024, the Special Master denied a request for
an additional extension to comply with the order, noted
“[t]he time for filing these records has expired,” and set the
remainder of the briefing schedule for the motion to excuse
Mrs. Sanchez from testifying, which also remains pending.
Appx298.2 Petitioners now challenge the October 28th or-
der.
II.
In general, a party may appeal to this court in a Vac-
cine Act case only once there is a judgment of the Court of
Federal Claims ending the trial court litigation. 42 U.S.C.
§ 300aa-12(f). There is no judgment here that ended the
litigation. See Amgen Inc. v. Amneal Pharms. LLC, 945
F.3d 1368, 1374 (Fed. Cir. 2020). Petitioners nevertheless
argue that we have jurisdiction to hear their interlocutory
2 Petitioners sought relief with the Chief Judge of
the Court of Federal Claims, which was denied.
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IN RE T.S. 4
appeal under the collateral order and/or Perlman doc-
trines.
The collateral order doctrine is a limited exception to
the final-judgment rule that allows for an appeal from a
non-final order if it: (1) conclusively determines the dis-
puted question; (2) resolves an important issue separate
from the merits of the action; and (3) is effectively unre-
viewable on appeal from a final judgment. Mohawk Indus.,
Inc. v. Carpenter, 558 U.S. 100, 105 (2009). In at least two
ways, this case does not come within that exception.
First, the trial court has not resolved whether Mrs.
Sanchez must testify, compelled her to turn over any treat-
ment records, sanctioned her, or imposed an adverse infer-
ence. In fact, the Special Master’s most recent order
indicates that he intends to now resolve petitioners’ re-
quest without the treatment records. Thus, there has been
no conclusive determination of the disputed issue.
Second, petitioners have failed to show that any issue
here cannot be effectively reviewed after the trial court en-
ters judgment. The Supreme Court in Mohawk held that
post-judgment appeals are generally sufficient to remedy
improper disclosure of privileged materials. 558 U.S. at
109. And other courts have understood Mohawk as barring
collateral order review of rulings rejecting therapist-pa-
tient privilege assertions. See, e.g., Rosner v. United
States, 958 F.3d 163, 166 (2d Cir. 2020). We see no reason
to deviate from that approach here.
Petitioners also invoke the Perlman doctrine, which
provides that “a discovery order directed at a disinterested
third party is treated as an immediately appealable final
order because the third party presumably lacks a sufficient
stake in the proceeding to risk contempt by refusing com-
pliance.” Waymo LLC v. Uber Techs., Inc., 870 F.3d 1350,
1366 (Fed. Cir. 2017) (quoting Church of Scientology of Cal.
v. United States, 506 U.S. 9, 18 n.11 (1992)).
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IN RE T.S. 5
Here, petitioners do not argue that Mrs. Sanchez is a
disinterested third party. Instead, they contend that “Mrs.
Sanchez’s therapist, Mr. Britt, is a ‘disinterested third
party.’” Pet. at 12. But the Special Master’s order is not
directed at Mr. Britt. It instead asks Mrs. Sanchez to turn
over her records and, as to Mr. Britt, merely observes that
“Mr. Britt may not decline to produce documents due to Ms.
Sanchez’s objection.” Appx7. Under such circumstances,
we cannot say that petitioners have shown they may im-
mediately appeal the Special Master’s order.
In the event they cannot appeal, petitioners ask this
court to issue a writ of mandamus ordering the Special
Master to vacate or reverse the order. See 28 U.S.C.
§ 1651(a); § 300aa-12(f). But mandamus is available only
in extraordinary situations where petitioners have no other
adequate means of obtaining the relief desired, the right to
issuance of the writ is clear and indisputable, and the
court, in its discretion, finds that a writ would be appropri-
ate under the circumstances. See Cheney v. U.S. Dist.
Court for D.C., 542 U.S. 367, 380–81 (2004).
Petitioners have not demonstrated how the Special
Master erred or exceeded his authority in asking for rec-
ords to assess petitioners’ request to excuse Mrs. Sanchez
from testifying. The Special Master concluded that any
privilege over the documents was waived when Mrs.
Sanchez introduced the issue of her mental health as the
reason for excusing her from live testimony. That conclu-
sion has not been shown to be clearly and indisputably in-
correct.3
3 As the Special Master noted, numerous courts have
held that the privilege may be waived by placing the condi-
tion at issue in the litigation. See e.g., Schoffstall v. Hen-
derson, 223 F.3d 818, 823 (8th Cir. 2000); Maynard v. City
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IN RE T.S. 6
Two final points: First, petitioners ask that this case
be reassigned, arguing the Special Master is biased. But
they cite only judicial rulings, which, even when adverse,
“almost never constitute a valid basis for a bias or partial-
ity motion.” Liteky v. United States, 510 U.S. 540, 555
(1994). Here, they do not. Second, it has been two years
since this court’s mandate issued. We fully expect the par-
ties and the Special Master to work expeditiously to bring
the case to a close.
Accordingly,
IT IS ORDERED THAT:
The petition is denied.
March 3, 2025
Date
FOR THE COURT
of San Jose, 37 F.3d 1396, 1402 (9th Cir. 1994); Doe v. Ober-
weis Dairy, 456 F.3d 704, 718 (7th Cir. 2006); Fisher v. Sw.
Bell Tel. Co., 361 F. App’x 974, 978 (10th Cir. 2010). Peti-
tioners have not clearly established a right to a different
conclusion here just because the waiver relates to Mrs.
Sanchez as a potential witness or the fact that this case
was brought on behalf of her son.
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