California OAH special education order · November 18, 2016
Order on Motion for Telephonic Testimony and Setting Additional Hearing Day
OAH Case No. 2016031019 · ALJ Dena Coggins
OAH denied Student's request to finish his expert's testimony by phone, because Sacramento deserved the same chance to cross-examine in person and the ALJ wanted consistent credibility observations.
This case went to decision
Student v. Vacaville Unified School District et al.: Vacaville and Sacramento City Unified must fund 188 therapy hours for inadequate mental health support, plus make-up speech services and assessments. (2017)
Summary
Partway through the hearing, Student asked to finish his expert Dr. James Earhart's testimony by telephone to save litigation costs. Sacramento objected because it wanted to complete its cross-examination in person, as the other parties had. The ALJ denied the motion. Sacramento deserved equal treatment, in-person observation would keep credibility findings consistent, nothing showed Dr. Earhart was unavailable, and the remaining time needed was reasonable and should have been expected. The ALJ also added a hearing day on December 14, 2016.
Why it matters
A party that calls an expert should plan for the expert to appear in person for the full cross-examination. Cost savings alone may not justify switching to phone testimony when the other side objects.
People named in the order
- Dr. James Earhart, Student's expert witness
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 Matter of:
PARENT ON BEHALF OF STUDENT, OAH Case No. 2016031019 v. ORDER ON MOTION FOR
TELEPHONIC TESTIMONY AND
VACAVILLE UNIFIED SCHOOL SETTING ADDITIONAL HEARING
DISTRICT and SACRAMENTO CITY DAY
UNIFIED SCHOOL DISTRICT.
This matter is currently being litigated in a due process hearing before the Office of Administrative Hearings. The hearing has been continued to December 6, 2016, at 9:30 a.m.
On November 14, 2016, Student called Dr. James Earhart to testify as an expert in his case-in-chief. Student’s counsel examined Dr. Earhart for approximately three and one-half hours. Vacaville cross-examined Dr. Earhart for almost two hours. Sacramento began its cross-examination of Dr. Earhart, which lasted for about an hour and fifteen minutes, but did not complete its cross-examination before the end of the hearing day. Dr. Earhart was informed at the end of the hearing day that he would be called again to finish his testimony.
The parties estimate less than half a day total to complete Dr. Earhart’s examination.
On November 14, 2016, at the end of the hearing day, Student made a motion to complete Dr. Earhart’s testimony via telephonic testimony to avoid increasing litigation costs. Sacramento opposed the motion because Sacramento would like to finish its cross- examination of Dr. Earhart in person, as was permitted for the other parties.
Sacramento should be provided the same opportunity to examine Dr. Earhart in person as the other parties. While it is true that the ALJ was able to observe Dr. Earhart’s cross examination by Sacramento, the ALJ finds that it would be helpful to observe the remainder of Dr. Earhart’s testimony in person to allow for consistency in credibility determinations relating to Dr. Earhart’s testimony. Additionally, there is no reason to believe Dr. Earhart is unavailable to testify in person on one of the remaining hearing days. The amount of time estimated to complete Dr. Earhart’s testimony is reasonable and should have been expected by Student when deciding to call Dr. Earhart to testify as an expert.
Accordingly, Student’s motion to allow Dr. Earhart to testify telephonically is denied.
Based on representations made by the parties about the estimated time needed to complete examination of all remaining witnesses, an additional hearing day will be added.
An additional hearing day is set for December 14, 2016, at 9:30 a.m.
IT IS SO ORDERED.
DATE: November 18, 2016
DENA COGGINS
Administrative Law Judge Office of Administrative Hearings