Opinion
No. 350, 2001
Submitted: June 21, 2002
Returned: October 23, 2002
Court Below : Superior Court of the State of Delaware in and for New Castle County C.A. No. 01A-01-008
FINDINGS UPON REMAND FROM THE SUPREME COURT OF DELAWARE
This is the Court's response to the Supreme Court's remand of the above-captioned case.
The facts and procedural history surrounding the above-captioned action are set forth in detail in the Court's prior decision on duPont's appeal dated June 29, 2001. In its decision, this Court affirmed the decision of the Industrial Accident Board dated December 21, 2000. The Board's decision granted Pierce's Petition for Additional Compensation Due alleging a recurrence of total disability. The Board awarded Pierce total disability benefits and medical benefits.
See duPont Hospital for Children v. Pierce, Del. Super., C.A. No. 01A-01-008, Goldstein, J. (June 29, 2001), Mem. Op.
Employer, duPont Hospital for Children ("duPont") appealed the Board's decision, arguing that the Board's findings were not supported by substantial evidence in the record and that the Board denied duPont due process because it did not afford duPont a full and fair hearing. Specifically, duPont argued that, "the Board did not overtly exclude evidence, but instead it evidenced an attitude of not wanting to spend the time necessary to fully consider the evidence offered." duPont claimed that, immediately prior to the hearing, Board members expressed concern at the number of witnesses who were to testify and how long the hearing would take. According to duPont, the Board instructed counsel that, "expert witness de positions had to be summarized as quickly as possible and that the testimony was not to be read verbatim to the Board." duPont acknowledged that the Board told counsel that it would read the depositions of the experts in their entirety prior to making a decision. However, duPont argued that the Board erred by not putting these statements on the record.
Appellant's Opening Brief, p. 28.
Appellant's Opening Brief, p. 28.
duPont also argued that the Board "rushed" counsel to get through the hearing by enforcing a "thirty minute" rule to examine and cross-examine expert witnesses, and a "five minute" rule for opening and closing arguments. duPont claimed that these time limits were not part of the Board's written rules, and are, therefore, illegal. duPont claimed that Board members also "criticized" how long the hearing was taking during the course of the hearing itself. Finally, duPont alleged that counsel witnessed the Board members leaving the hearing room at the end of the testimony and that they were not carrying any of the documents from the hearing with them. Therefore, duPont claimed, the Board could not have read the deposition transcripts prior to reaching its decision.
In its June 29, 2001 decision, this Court determined that, based upon careful review of the Board's decision, the 191-page transcript of the Board's December 12, 2000 hearing and the deposition transcripts, there was no evidence to support duPont's claim that the Board denied duPont due process of law. The Court also found that substantial evidence existed in the record below to support the Board's determination that Pierce had met her burden of proof to show a recurrence of her total disability, that the Board did not err as a matter of law or abuse its discretion in accepting the testimony of Dr. Hullinger, a psychologist, that the Board did not err by accepting Dr. Hullinger's testimony over that of Dr. Raskin, and that the Board acted within its discretion by accepting the testimony of Dr. Mawn, Dr. Peterson, and Dr. Hullinger over that of Dr. Gibbs.
Pierce, C.A. No. 01A-01-008 at 11.
Id.
duPont subsequently appealed this Court's decision to the Supreme Court. On December 6, 2001, the Supreme Court affirmed this Court's decision. duPont subsequently filed a Motion for Reargument, requesting in part that the Supreme court issue a more detailed written opinion regarding the due process issues presented on appeal. On June 21, 2002, the Supreme Court granted duPont's Motion for Reargument and vacated its December 6, 2001 Order. The Supreme Court remanded the action to this Court, "for the purpose of expanding the record and to address any issues raised by the parties with regard to the expanded record."
See duPont Hospital for Children v. Pierce, Del. Supr., No. 350, 2001, Steele, J. (Dec. 6, 2001) (ORDER).
See duPont Hospital for Children v. Pierce, Del. Supr., No. 350, 2001, Steele, J. (June 21, 2002)(ORDER).
Id. at 2.
The Court held a conference with the parties on July 8, 2002. At that conference, the parties agreed that the issues which needed to be addressed by the Court dealt with the due process afforded to duPont at the December 12, 2000 Board hearing. Specifically, duPont set forth several due process violations which it alleges occurred at the Board hearing and which needed to be addressed further by the Court: first, that the Board stated off the record prior to the hearing that it wanted to limit the duration of the hearing and that the Board deliberately failed to record these pre-trial remarks; second, that the Board enforced an informal "thirty minute rule" to examine witnesses and a "five minute rule" for summations, and finally, that the Board failed to read the deposition transcripts of the expert witnesses submitted during the hearing. The Court determined that a hearing was necessary in order to expand the record and to address the due process issues raised.
On September 24, 20 02, the Court held a hearing to consider the issues raised pursuant to the remand from the Supreme Court. The Court permitted the Office of the Attorney General to intervene in order to protect the interests of the Board and the hearing officers. At the hearing, duPont initially called John Kirk, Administrator of the Department of Labor, Office of Workers' Compensation. Kirk testified that was not aware of an "actual" rule limiting opening and closing arguments before the Board to five minutes and that he was unaware of a rule limiting examination of any witness to thirty minutes. Kirk stated, however, that he, "thought it was a ten minute rule." However, Kirk stated that he was not directly involved in Board hearings and did not know their day to day activities. Kirk confirmed that all Board hearings are tape recorded and that the tapes are maintained by the Office of Workers' Compensation.
On September 3, 2002, the Office of the Attorney General filed a motion to quash duPont's subpoena duces tecum of Linda Wilson. On September 12, 2002, the Court held a separate hearing in order to consider the Motion to Quash and determined that the subpoena should be permitted.
duPont next called as a witness John J. Polk, Esq., Chief Hearing Officer for the Office of Workers' Compensation. Polk explained that role of the hearing officers for the Board is to sit with the Board during hearings, to give advice regarding any legal issues raised, and to write the decision of the Board. Polk also explained that, where the parties consent, the hearing officer may sit in place of the Board . When questioned about the existence of the alleged "five minute rule," Polk testified that he had never heard of such a rule prior to the issue arising in the present case. Polk questioned several hearing officers as to whether they had heard of the rule and stated that only one told him that he had. Polk testified that he had never personally seen the Board cut off counsel's arguments after five minutes had elapsed. Polk stated that he had heard the Board ask counsel to make their closings, "short, simple and direct," but that he had never heard a Board member stop a lawyer during summations and tell the lawyer to hurry up, although he had heard a Board member state that he understood a certain point and to "please move on."
Polk testified that he had heard of a "thirty minute" rule in December 1997 at a training session for hearing officers. Polk stated that he had also heard the rule spoken of once during a Board hearing. Polk explained that the hearing to which he referred did not conclude until 8:30 p.m. and that the Board informed the pro se claimant, after he had cross-examined an expert witness for over an hour, to finish up because, "we do have a thirty minute rule."
Polk explained that it was his understanding, under the thirty minute rule, that an expert would be limited to testifying for thirty minutes for each side. However, Polk stated that he had been told that this was, "not the case in reality." Polk testified that he had participated in hearings of complex cases and that he had never actually seen a thirty minute rule imposed on testimony.
Polk testified that he had seen the Board allow attorneys to read an entire witness deposition transcript into the record but that it was the Board's preference for the attorney not to do so. Polk stated that the Board does not want counsel to summarize deposition testimony; rather, they prefer to have a question and the entire answer read into the record.
Polk stated that, at the conclusion of a hearing, the Board normally has the parties leave the room and then makes its decision after deliberating privately. However, Polk testified, after a long hearing, the Board may postpone deliberation and leave without reaching a decision. The Board announces its decision to the hearing officer who writes the decision. Polk testified that the hearing officer is not included in the deliberation process.
Polk testified that the hearing officer has a fourteen day deadline to issue a decision. The parties are permitted to submit written arguments and to submit depositions and other documents after the hearing has concluded. Polk also explained that under Board Rule 21, parties may apply for further hearing or rehearing before or after a decision has been issued. Polk confirmed that the rule would apply to a situation where a party believed that it did not receive a full, fair hearing.
Polk testified that he had written materials that were presented at a meeting for workers' compensation practitioners in the Spring of 2000. Polk stated that the materials made no reference to a five minute or thirty minute rule. A copy of those written materials were submitted as an exhibit to the Court. Polk also stated that the Board's written rules make no reference to such time limits.
Polk testified that the transcript of the December 12, 2000 hearing in the instant appeal began with the reading of the caption of the case. Polk explained that the reading of the caption signals that taping of the proceedings has begun. If a statement was made prior to the caption being read, counsel would know that it was not on the record. Polk conceded that certain statements are not made on the record, but those statements are limited to preliminary remarks. Polk agreed that it would be improper for the Board to call counsel in privately and to comment off the record that there were a lot of witnesses, to "get the case moving, we don't want to be here all day." However, Polk stated that he had never witnessed such an exchange occur.
Linda L. Wilson, Esq., a former hearing officer for the Industrial Accident Board, testified pursuant to duPont's subpoena. Wilson acted as hearing officer at the December 12, 2000 hearing. Wilson testified that she was familiar with the "five minute" rule for opening and closing arguments and that she had "heard people use the term ." However, Wilson stated that she never saw the Board limit arguments, although the Board may have asked the parties to, "move this thing along." Wilson testified that, had she ever heard the Board limit the parties to five minute summations, she would have remembered because she would have been concerned about a denial of due process. Wilson testified that she had heard of the "thirty minute rule," but had never personally seen it used.
Wilson testified that she had a "vague recollection" of the Pierce case and that she did not recall that it was complex. Wilson reviewed portions of the transcript of the Pierce hearing and stated that there was no indication of time limits on the opening or closing arguments. Wilson stated that, had she heard the Board impose time limits on the attorneys, she would have advised the Board not to do so out of concern for due process violations. Wilson testified that, if a significant issue arose prior to the hearing commencement, the parties generally asked to go on the record. Wilson stated that she always turned on the tape recorder if someone asked.
Wilson testified that, generally, she met with the Board after the hearing concluded. Wilson stated that she had further discussions with the Board only if there was a problem with the decision. Wilson testified that she could not remember if the Board had a problem with the decision she wrote in the Pierce case.
Gail Pierce, claimant in the original proceedings, testified. Mrs. Pierce testified that she remembered the December 12, 2000 hearing. Mrs. Pierce recalled being asked to come into the hearing room with her lawyer and husband . Mrs. Pierce did not recall the Board limiting the time allowed for witness testimony or for opening or closing arguments. Kenneth Pierce, Gail Pierce's husband, testified that he also recalled the Board hearing and remembered that the attorneys and the Pierces walked into the hearing room together. Mr. Pierce testified that he did not remember the Board mentioning time limits regarding arguments or witness testimony.
Finally, Dr. Peggy Hullinger, an expert witness on behalf of Gail Pierce at the Board hearing, testified. Dr. Hullinger testified that she recalled the December 20, 2000 Board hearing and that she was the first expert witness to testify. Dr. Hullinger testified that she recalled her testimony and stated that she was not limited in its length. Dr. Hullinger stated that she remembered that her testimony was rather lengthy and that she went into great depth. Dr. Hullinger remarked that she thought the Board was "generous" in allowing her testimony. Dr. Hullinger also testified that she was experienced testifying before the Board and that she had never been limited in the length of her testimony.
duPont states in its memorandum submitted after the remand hearing that, "it was obvious from the questions asked at the hearing, and the responses, that the three witnesses associated with the Board had been interviewed and prepped." The Court assumes that duPont refers to the testimony of John Kirk, John Polk, and Linda Wilson, rather than the Pierces and Dr. Hullinger. Despite duPont's allegation, the Court cannot find that there is any indication that any of the witnesses who testified at the remand hearing had been inappropriately "prepped" or coached in their responses, as duPont seems to suggest.
At the conclusion of the hearing, the parties were asked to submit memoranda stating their proposed findings of fact and legal conclusions. The Court has considered the parties' submissions in addressing the Supreme Court's direction to "address any issues raised" by the expanded record.
After fully considering the expanded record in the above-captioned proceedings, this Court cannot find that the Board denied duPont's constitutional right to due process of law by failing to provide duPont with a full and fair hearing. First, duPont argued that the Board rushed the parties through the hearing and that the Board's alleged admonition to limit the duration of testimony was not recorded along with the main proceedings. As stated in the Court's initial decision, the record of the Board proceedings does not support duPont's allegation that the Board rushed the parties through the hearing. Nor can the Court find that the testimony offered at the hearing to expand the record offers any additional proof of such allegations. In his affidavit attached to his brief submitted during the Superior Court appeal, counsel for duPont alleged that the Board conducted a pre-trial, off the record, meeting with counsel for the parties and that the Board expressed concern at the number of witnesses to be called. duPont's counsel also claimed that the Board informed counsel that deposition testimony was to be summarized "as quickly as possible."
See Pierce, C.A. No. 01A-01-008 at 11-12.
As Appellee points out in his memorandum, duPont's counsel chose not to recuse himself as counsel of record in order to testify as to the events that occurred at the December 12, 2000 Board hearing as would be required by Professional Conduct Rule 3.7(a). The Court, therefore, cannot accept duPont counsel's affidavit as testimony, but will consider the statements contained therein as argument.
However, both Gail Pierce and her husband testified that they entered the hearing room at the same time as counsel and that they did not recall any discussion between counsel and the Board prior to the hearing regarding time limits or summarizing deposition testimony. Linda Wilson testified that there were occasions where the attorneys came in separately from the witnesses, but that if a significant pretrial issue arose, the parties generally asked to go on the record. Wilson testified that any conversation off the record before a hearing would have been limited to questions regarding the number of witnesses to be called or whether any witnesses on the list were not going to testify.
In addition, the Court notes that the transcript does not reflect any objection on behalf of duPont counsel once the formal proceedings began that the discussion alleged by duPont's counsel actually occurred or that he believed that the discussion should have been on the record. Therefore, the Court finds that duPont has failed to show that the Board violated due process by failing to record all the proceedings that occurred at the December 12, 2000 hearing.
This Court also cannot find proof in the expanded record to show that the Board deprived duPont of its right to due process of law by rushing the parties through the hearing or requiring them to curtail their presentation of expert witness testimony. The transcript of the Board hearing does show that the entire text of the transcript testimony of those expert witnesses who testified via deposition was not read into the record verbatim. However, the Court cannot find that duPont has shown that it was prevented by the Board from putting into the record the portions of the testimony it wished to emphasize. As noted in the Court's decision on appeal, duPont's counsel never objected that there was additional evidence he wished to present that he was not permitted to cover. There is no record that the Board stopped either counsel during direct or cross-examination of a witness or prevented counsel from going through the deposition testimony.
The record of the Board hearing shows that a Board member expressed his concern that there be "very little repetition of redundancy" in the deposition testimony. However, that Board member concludes that "we're going to read all of these anyway." Therefore, to the extent that duPont argues that it was deprived of due process by being forced to summarize deposition testimony, the Court finds that duPont has failed to show any prejudice.
The Court cannot find that the Board, as a general matter, deprives parties of due process by not having an entire expert witness deposition transcript read into the record during the hearing. Such a requirement would place an undue burden on the ability of the parties to conclude a hearing in a timely manner. The three deposition transcripts submitted in this case averaged 70 pages in length. Parties are permitted to submit the entire transcript to the Board so that reading the entire deposition transcript into the record during the hearing would be redundant and repetitious.
duPont also argues that the Board violated its due process rights by using "unwritten rules" that limited the time spent on direct and cross examination of expert witnesses to thirty minutes and limited time spent on opening and closing arguments to five minutes. In his affidavit attached to his Superior Court opening brief, duPont's counsel alleges that the Board enforced its "thirty minute rule" during Dr. Gibbs' live testimony. Counsel also alleged that the Board limited counsels' closing arguments to five minutes. In its decision on appeal, the Court found that the statements in the Board hearing transcript to which duPont points in order to support its allegations were insufficient to show that duPont was prejudiced by any alleged time limits on testimony or closing arguments.
Id. at 11-12.
After reviewing the evidence and testimony submitted at the remand hearing, the Court finds that duPont has failed to show any violation of its right to a full and fair hearing due to the alleged "five minute rule" or "thirty minute rule." Both Wilson and Polk testified that they had heard of these rules generally, but neither had ever seen the Board actually impose them. Although Polk testified that he heard the Board remind a pro se claimant that, "we do have a thirty minute rule," in actuality the Board permitted the claimant to cross examine the witness for over an hour.
Wilson testified that she had never seen the Board limit arguments or limit counsel to five minutes for summations. Wilson stated that, had she heard the Board impose such time limitations, she would have been concerned because she felt such limitations would have been "a denial of due process." Wilson stressed that, had she heard the Board cut off summations, she would have told them not to do so.
The evidence presented at the remand hearing seems to show that the "five minute" and "thirty minute" rules alleged by duPont seemingly exist only in folklore or on some theoretical plane. A caution to the Board, however, seems appropriate. That is, the Board ought to be aware that to actually impose limits on witness testimony or upon summations may result in a situation where a party is deprived of the opportunity to present relevant evidence and that such a situation would result in a deprivation of due process. As noted in its initial decision on appeal, this Court has previously found that such time limits "should not work to the detriment of litigants appearing before it."
Richardson's Market v. Covais, Del. Super., C.A. 94 A-07-019, Carpenter, J. (Mar. 31, 1995), Order at 16.
However, in the instant case, Court finds that duPont has failed to show that the Board actually imposed any such time limits at the Pierce hearing and that, as a result, those rules worked to duPont's detriment. Therefore, the Court cannot find that duPont was deprived of due process of law because it was deprived of the opportunity to present relevant evidence or to fully argue its case.
Finally, duPont argues that the Board did not read the deposition transcripts of the expert witnesses submitted during the Pierce hearing. In his affidavit, duPont's counsel alleges that he witnessed the Board members leaving the building after the Pierce hearing and that neither member was carrying any documents. Therefore, Counsel argued, the Board could not have read the transcripts prior to reaching their decision in the case.
Despite duPont's argument that Linda Wilson's testimony at the remand hearing, "clearly established" that the Board deliberated immediately after the Pierce hearing concluded and that the Board then instructed Wilson on how to write the decision, the Court cannot find that duPont has shown that the Board failed to adequately consider the deposition testimony in reaching its decision. Wilson did testify that, as a general rule, the Board did not meet with her again after the hearing unless there was a problem. However, Wilson testified that she could not remember if a problem had arisen in the Pierce case. John Polk testified that it is not unusual for the Board to reconvene at a later time to deliberate after a long hearing. Therefore, the Court concludes that duPont has failed to show that the Board violated duPont's right to due process of law by failing to read the deposition testimony presented at the Pierce hearing.
In conclusion, this Court has expanded the record in the above-captioned case in order to consider the issues identified by the parties. Having carefully reviewed the record of the proceedings below and the evidence and testimony presented pursuant to the Supreme Court's remand, the Court concludes that duPont has failed to show that it was not provided with a full and fair hearing by the Board or that the Board otherwise denied duPont due process of law by failing to provide it with the opportunity to present its case or by failing to consider the evidence submitted during the hearing.