Opinion
CIVIL ACTION No. 02-2164-CM
May 27, 2003.
MEMORANDUM AND ORDER
This case is an appeal seeking de novo review, pursuant to 20 U.S.C. § 1415(i)(2)(A), of administrative decisions made by the Kansas State Board of Education with respect to Ben Johnson, a student with autism, who is allegedly entitled to special education services under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400-1490. Currently pending before the court is plaintiffs' Motion for Additional Testimony (Doc. 21), which plaintiffs have brought under 20 U.S.C. § 1415(i)(2)(B)(ii).
On July 23, 2001, a Hearing Officer conducted an administrative hearing regarding plaintiff Ben Johnson's Individual Education Plan (IEP) and concluded that the IEP was appropriate. Plaintiffs appeal from the Hearing Officer's ruling and, to that end, seek to introduce testimony that was not introduced at the administrative hearing. Specifically, plaintiffs ask the court to allow testimony from Dr. James A. Mulick, Ph.D., regarding his assessment of a report prepared by Dr. Vincent Barone, Ph.D.; the Hearing Officer excluded this testimony at the hearing. Plaintiffs also ask the court to allow testimony from plaintiffs Ron and Susan Johnson regarding the damages they allegedly incurred in providing plaintiff Ben Johnson with educational services in Spring 2001.
• Facts
º Dr. Mulick's Testimony At the hearing, the Hearing Officer limited the scope of Dr. Mulick's testimony. Dr. Mulick is one of two experts retained by plaintiffs for the due process hearing; the other expert is Dr. Donald M. Baer, Ph.D. Plaintiffs disclosed the identities of both expert witnesses more than five days prior to the administrative hearing, as required by Kan. Stat. Ann. § 72-973. This disclosure — in regard to Dr. Mulick — consists of an affidavit which purports to set forth the subjects about which plaintiffs engaged Dr. Mulick to render an opinion. The subjects outlined in the affidavit include the following: whether Dr. Mulick has ever testified as an expert witness in cases involving autism and applied behavior analysis, whether he is familiar with the scholarly work of Dr. Baer, whether he considers Dr. Baer to be an expert in applied behavior science, whether he considers Dr. Baer to be an expert on generalization of learning, and whether he believes Dr. Baer is qualified to develop a transition plan for a child with autism. In his affidavit, Dr. Mulick also comments on a 1999 report by the United States Surgeon General which, he claims, reinforces Dr. Baer's position as a pioneer in the field of applied behavioral science, and also comments on one theory of generalization in learning. Finally, Dr. Mulick states that he was previously retained by plaintiffs in May 2000 to provide an independent evaluation for plaintiff Ben Johnson in preparation for an earlier due process hearing on plaintiff Ben Johnson's behalf that took place in December 2000. Dr. Mulick's affidavit does not indicate that Dr. Mulick reviewed the report prepared by Dr. Barone on October 30, 2000. Dr. Mulick's affidavit does not set forth any opinion regarding Dr. Barone's report or the IEP Dr. Barone implemented for plaintiff Ben Johnson. Moreover, also absent from this affidavit is any reference that might indicate that Dr. Mulick conducted an independent analysis of plaintiff Ben Johnson's IEP in preparation for the July 23, 2001 due process hearing. When Dr. Mulick testified at the due process hearing, plaintiffs attempted to elicit testimony regarding Dr. Mulick's opinions and criticisms of Dr. Barone's October 30, 2000 report. Defendant objected to the admission of such testimony because plaintiffs had not previously disclosed any of Dr. Mulick's opinions or criticism of Dr. Barone's report. The Hearing Officer granted defendant's objection pursuant to § 72-973. Plaintiffs contend that the Hearing Officer, in sustaining defendant's objection, applied the procedural requirements of Kan. Stat. Ann. § 60-226(b) to § 72-973. Plaintiffs argue that. § 60-226(b) does not apply to the due process hearing because the Kansas Board of Education has not adopted the Kansas Code of Civil Procedure. Defendant argues that the record does not support plaintiffs' argument that the Hearing Officer applied any part of the Kansas Code of Civil Procedure. In the alternative, defendant argues that the Hearing Officer is allowed to adopt any part of the Kansas Code of Civil Procedure that is consistent with the administrative procedural requirements of the due process hearing.
There is a discrepancy between the Hearing Officer's Findings of Fact and plaintiffs' pending motion. The Findings of Fact indicate that this report was dated October 31, 2000, while plaintiffs' motion states the report was dated October 30, 2000. For purposes of this opinion, the discrepancy makes no difference. The court will use the date provided by plaintiffs, as it corresponds with the date at the top of Dr. Barone's report, which defendant attached as Exhibit 23 to its Response to Motion for Additional Testimony.
º Plaintiffs' Testimony Regarding Damages
Plaintiffs also ask the court to allow additional testimony from plaintiffs Ron and Susan Johnson regarding the expenses plaintiffs allegedly incurred in providing plaintiff Ben Johnson with educational services in Spring 2001. In support of this request, plaintiffs argue that the Hearing Officer bifurcated the damages issue from the rest of the case, and, therefore, plaintiffs were not allowed the opportunity to present testimony regarding damages at the due process hearing.
Defendant asserts that plaintiffs never moved to bifurcate the issue of compensatory damages and that the Hearing Officer did not bifurcate the issue. Defendant points out that plaintiffs did not cite to the record in asserting that bifurcation occurred. Defendant argues that plaintiffs omitted the citation because there is no support to be found in the record.
• Analysis
The taking of additional evidence, as directed by 20 U.S.C. § 1415(i)(2)(B)(ii), is a matter left to the discretion of the trial court. Johnson ex rel. Johnson v. Olathe Dist. Sch. Unified Sch. Dist. No. 233, 212 F.R.D. 582, 585 (D.Kan. 2003) (citations omitted). "The issue is whether the administrative record contains sufficient evidence to evaluate the hearing officer's decision." Id . This court construes the term "additional" to mean "supplemental." Id . Further,
[t]he reasons for supplementation will vary; they might include gaps in the administrative transcript owing to mechanical failure, unavailability of a witness, an improper exclusion of evidence by the administrative agency and evidence concerning relevant events occurring subsequent to the administrative hearing.Id ., (quoting Town of Burlington v. Dept. of Educ ., 736 F.2d 773, 790-91 (1st Cir. 1984)). The court applies this standard for the admission of additional evidence in this case. Id .
º Admission of Additional Testimony from Dr. Mulick
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Plaintiffs argue that the Hearing Officer improperly excluded Dr. Mulick's testimony regarding Dr. Barone's report. Improper exclusion of evidence is one of the factors set forth in Town of Burlington . The court reviews de novo all administrative decisions made by the Hearing Officer. See O'Toole By and Through O'Toole v. Olathe Dist. Sch. Unified Sch. Dist. No. 233 , 144 F.3d 692, 698 (10 Cir. 1998). The "court does not use the substantial evidence standard typically applied in the review of administrative decisions," but instead conducts an independent review of the "evidence contained in the administrative record, accept[s] and review[s] additional evidence, if necessary, and make[s] a decision based on the preponderance of the evidence, while giving `due weight' to the administrative proceedings below." Fowler by Fowler v. Unified Sch. Dist. No. 259, Sedgwick County, Kan ., 900 F. Supp. 1540, 1544 (D.Kan. 1995). Plaintiffs first argue that the Hearing Officer improperly excluded portions of Dr. Mulick's testimony by misapplying Kan. Stat. Ann. § 60-226, which requires full disclosure of the basis for and conclusions of expert evaluations which are to be offered at trial. Plaintiffs contend that the Hearing Officer's exclusion of the testimony was improper because § 60-226 is a part of the Kansas Code of Civil Procedure which plaintiffs claim should not have been applied in the due process hearing. Kan. Stat. Ann. § 60-265 controls the application of the Kansas Code of Civil Procedure. That statute provides:
The provisions of this article shall apply only to actions and proceedings in the district courts, other than actions commenced pursuant to the code of civil procedure for limited actions and shall apply to original actions in the supreme court except:
(2) When any other such court or judicial or quasi-judicial body adopts by an order, which order is consistent with all statutes controlling its procedures, all or a part of this article for its own proceedings, either in a particular matter before it or in any matters generally.Kan. Stat. Ann. § 60-265. Plaintiffs argue that the Kansas Board of Education has not expressly adopted the Kansas Code of Civil Procedure and that the Hearing Officer was not, therefore, empowered to apply any part of the Code to the due process hearing. Defendant argues that there is no support in the record for plaintiffs' contention that the Hearing Officer applied § 60-226 at all. Moreover, defendant argues, even if the Hearing Officer had applied parts of the Kansas Code of Civil Procedure, that application was within the Hearing Officer's purview as an administrative body acting in a quasi-judicial manner. Finally, defendant argues that, even if the Hearing Officer improperly applied the Kansas Civil Code of Procedure, the decision to exclude the testimony was, in any event, proper, and should not be disturbed. The record does not explicitly indicate whether the Hearing Officer applied § 60-226 when deciding to exclude portions of Dr. Mulick's testimony. The record merely indicates that the Hearing Officer interpreted Kan. Stat. Ann. § 72-973 as requiring disclosure of the opinions about which Dr. Mulick would testify. The court concludes that the Hearing Officer applied § 72-973, and not § 60-226, to Dr. Mulick's testimony. The court, therefore, moves to an analysis of the requirements set forth by § 72-973.
(a) Any due process hearing provided for under this act, shall be held at a time and place reasonably convenient to the parent of the involved child, shall be a closed hearing unless the parent requests an open hearing, and shall be conducted in accordance with rules and regulations relating thereto adopted by the agency. Such rules and regulations shall afford procedural due process, including the following
(7) the right of the parties to prohibit the presentation of any evidence at the hearing which has not been disclosed to the opposite party at least five days prior to the hearing, including any evaluations completed by that date and any recommendations based on such evaluations;Kan. Stat. Ann. § 72-973. Plaintiffs argue that, under § 72-973, they were not required to disclose the opinions Dr. Mulick would express because he did not complete an evaluation. "Evaluation," plaintiffs argue, has a highly technical meaning in this context, and Dr. Mulick did not create any document or opinion that would qualify as such. Plaintiffs do not contend that Dr. Mulick's opinions were disclosed prior to the hearing. Instead, they argue that such disclosure is not required under § 72-973. Section 72-973 is not so limited in scope as the plaintiffs argue. "In determining the scope of a statute, we look first to its language. If the statutory language is unambiguous, in the absence of `a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive.'" United States v. Turkette , 452 U.S. 576, 580 (1981) (quoting Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc ., 447 U.S. 102, 108 (1980)). In this case, the language of the statute is quite clear. Each of the parties to the due process hearing has the right to "prohibit the presentation of any evidence at the hearing which has not been disclosed to the opposite party at least five days prior to the hearing." Kan. Stat. Ann. § 72-973(a)(7) (emphasis added). A plain reading compels the court to conclude that the statute is not limited to expert witnesses or their evaluations. Rather, this statute applies to all evidence the parties intend to present, including testimony of expert witnesses. While the last phrase of the statute specifically requires the disclosure of evaluations and recommendations based on the evaluations, the court finds that these are words of illustration, not limitation.
The legislative history lends further support to this conclusion by showing that the original paragraph 7 of this statute, added in 1978, did not contain this last phrase at all. The original section read:
(7) the right of the parties to prohibit the presentaiton of any evidence at the hearing which has not been disclosed to the opposite party at least five (5) days prior to the hearing;
K.S.A. § 72-973(a)(7) (1978). In 1999, the paragraph was amended to include the phrase, "including any evaluations completed by that date and any recommendations based on such evaluations . . ." Through this amendment, the legislature did not remove the requirement that all evidence be disclosed; it merely added the specific requirement that such disclosure include evaluations and recommendations.
While the legislative history is silent regarding the purpose of § 72-973(a)(7), the court finds that the purpose of this section, like other rules requiring disclosure of expert testimony and other evidence, is one of notice. Dr. Mulick's affidavit sets forth specific tasks for which plaintiffs retained him. These tasks center largely around giving his opinion of plaintiffs' other expert, Dr. Baer. Two items that are conspicuously absent from his affidavit are any mention that he was asked to review Dr. Barone's report and any hint that he had formed an opinion regarding that report. Defendants could not have anticipated that Dr. Mulick's testimony would include commentary on Dr. Barone's report when defendants were not on notice that Dr. Mulick had reviewed — or had even been asked to review — the report. The Hearing Officer's exclusion of this testimony under § 72-973(a)(7) was appropriate, and the court will not disturb the ruling. Plaintiffs' Motion for Additional Testimony, as it relates to Dr. Mulick's testimony, is denied.
For example, Fed.R.Civ.P. 26(a)(2) "serves primarily to require disclosure of expert testimony early enough before trial to allow parties and counsel adequate time to prepare cross-examination, [and] confer with their own experts." See Dixon v. Certainteed Corp., 168 F.R.D. 51, 54 (D.Kan. 1996).
• Admission of Additional Testimony Regarding Plaintiffs' Damages
Defendant argues that the Hearing Officer did not bifurcate the substantive issues from the damages issues. In support, defendant points to the fact that plaintiffs have not cited any support in the record for the factual contention that the Hearing Officer bifurcated the issues.
Plaintiffs ask the court to allow plaintiffs Ron and Susan Johnson to submit additional testimony regarding damages they allegedly incurred in providing educational services to plaintiff Ben Johnson during Spring 2001. Plaintiffs' sole argument supporting their request is that the Hearing Officer bifurcated the issue of damages and never allowed plaintiffs to present evidence on that issue. When seeking review of a state administrative decision under 20 U.S.C. § 1415, parties are required to raise every appropriate issue in the due process hearing in order to preserve those issues for appeal. Coe v. Michigan Dept. of Educ ., 693 F.2d 616, 618 (6 Cir. 1982). Therefore, if the issues were not bifurcated, plaintiffs are barred from presenting new evidence regarding their damages. Defendant is correct in its assertion that Plaintiffs have not cited any portion of the record showing bifurcation. After reviewing the record, the court is unable to determine whether the Hearing Officer bifurcated the issues. While the court has found no reference that the issues were bifurcated, it has likewise found nothing to indicate that the issues were not bifurcated. Nothing in the Hearing Officer's Finding of Facts indicates that plaintiffs had an opportunity to present evidence regarding damages. If the issues were bifurcated, and the issue of damages was not presented and ruled upon by the Hearing Officer, then that issue is not yet ripe for appellate review. See Rocky Mountain Radar, Inc. v. F.C.C., 158 F.3d 1118, 1123 (10 Cir. 1998) . If, on the other hand, the issues were not bifurcated, then plaintiffs are barred from presenting new evidence regarding damages. Coe , 693 F.2d at 618. In either event, the court will not, at this time, allow additional evidence on the issue of damages. If plaintiffs are successful in their substantive claims, and the court reverses and remands the case to the Hearing Officer, the Hearing Officer may make a determination regarding whether additional testimony is appropriate. IT IS THEREFORE ORDERED