California OAH special education order · April 15, 2013
Order Denying District's Motion to Continue Hearing
OAH Case No. 2013020661, 2012100261 · ALJ Clifford H. Woosley
OAH denied District's eve-of-hearing request to continue because its expert witness fell ill. District's case had been pending since October 2012, but District may call the expert later once she recovers.
This case went to decision
Student v. Poway Unified School District (consolidated): Poway Unified may give a fourth grader with autism the KABC-II cognitive test over parent objection; auditory processing claim denied. (2013)
Summary
The day before the consolidated hearing, District asked for a one- to two-week continuance because a key expert witness had become ill, and it submitted a letter from her treating specialist. Student objected because his own expert had been scheduled long ago and would still have to be paid if the hearing moved. After a telephonic status conference, the ALJ denied the continuance, noting District's due process complaint had been filed in October 2012. District kept the right to call the expert later, once she recovers in about seven to 10 days, and any motion about her testimony will be decided at hearing.
Why it matters
OAH may refuse a last-minute continuance, even for a sick witness, when a case has been pending a long time and the other side has scheduled and paid for its own experts. Instead, the judge may let the unavailable witness testify at a later date. Parents can point to the cost and burden on their own experts when opposing a delay.
Topics
Full text of the order
Published text of the OAH order. Page headers and numbers from the original PDF have been dropped.
BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
In the Consolidated Matters of:
PARENT ON BEHALF OF STUDENT, OAH CASE NO. 2013020661
v.
POWAY UNIFIED SCHOOL DISTRICT,
POWAY UNIFIED SCHOOL DISTRICT, OAH CASE NO. 2012100261
v.
ORDER DENYING DISTRICT’S
PARENT ON BEHALF OF STUDENT. MOTION TO CONTINUE HEARING
On April 15, 2013, at 2:45 p.m., District filed a motion to continue the hearing in these consolidated matters, which is scheduled for 9:30 a.m., April 16 and 17, 2013.
District’s motion states that one of its properly designated expert witnesses had become ill and would be unable to testify until she recovers. District identified the witness as crucial to its case and, further, stated that it would be greatly prejudiced if required to proceed to hearing without the expert’s testimony. District requested a one to two week continuance.
The assigned hearing officer, Administrative Law Judge (ALJ) Clifford H. Woosley, contacted and held a telephonic status conference with District’s attorney Sundee M. Johnson and Student’s attorney Marci Tiffany at approximately 4:00 p.m. April 15, 2013. The sole purpose of the conference was to discuss District’s motion. The conference was not recorded.
The parties discussed the various options. By the time of the conference, Ms.
Johnson had obtained a letter from the witness’s treating specialist, which she faxed to OAH and Student’s counsel. Student objected to a continuance because his expert witness had long ago been scheduled. If the hearing was continued, Student would still be required to pay its expert because the expert reserved the time. The parties discussed options regarding the hearing timetable, order of witnesses, reserving testimony for a later time, the necessity of District’s expert’s testimony, and the manner of the District’s expert’s testimony if received after she has recovered.
Based thereon, and in consideration that the District’s due process was initially filed in October 2012, the District’s motion to continue is denied. However, the District retains the right to call the identified expert witness at a later time, after she recovers, which the treating specialist indicates would be seven to 10 days.
Any motion regarding the expert witness’s testimony, like any other proffered witness, will be heard, argued, and ruled upon at hearing.
IT IS SO ORDERED.
Dated: April 15, 2013 /s/
CLIFFORD H. WOOSLEY
Administrative Law Judge Office of Administrative Hearings