Farmer v. Salem-Keizer School District et al, No. 6:2009cv06297 - Document 72 (D. Or. 2011)
Court Description: Opinion & Order: Motion to Supplement Administrative Record 62 is granted. Signed on 8/11/11 by Chief Judge Ann L. Aiken. (ljb)
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Farmer v. Salem-Keizer School District et al Doc. 72 fILED 'i5 AUG '1112:25 USDC·ORE IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON S.F., on behalf of M.F., a minor child and S.F. individually (hereafter referred to as S.F.), Civ No. 09-6297-AA Plaintiff, OPINION AND ORDER v. SALEM-KEIZER SCHOOL DISTRICT, OREGON DEPARTMENT OF EDUCATION and RUTH GELBRICH, individually, Defendants. AIKEN, Chief Judge: In this action brought pursuant to the Individuals with Disabilities Act (IDEA), 20 U.S.C. §§ 1400 et seq., plaintiff moves to supplement the record with the declaration of an expert witness, Dr. Alan damages. In Kaufman, and other evidence relevant to plaintiff's Defendants oppose the motion. an IDEA action, a district court "shall" receive the records of the administrative proceedings, hear additional evidence 1 - OPINION AND ORDER Dockets.Justia.com at the request of a party, determines is and "grant s appropriate." 20 rel U.S.C. f as the court 1415(i) (2) (C). § considering a motion to supplement t In a district court "should weigh heavily the important concerns of not allowing a party to undercut the statutory role of strative expertise, the unfairness involved in one party's res for trial, the administrative resources." the hearing, witness and the did hearing. or u F.3d testify conservation at of the judicial (internal quotation marks and citation omitted) . a district court "need not cons repeats not Roland M. v. Concord School Comm., 910 F.2d 983, 996 (1st Cir. 1990) Thus, reason its best evidence embellishes evidence that simply r taken at t administrative E.M. ex rel. E.M. v. Pajaro Valley Unified Sch. Dist., , 2011 WL 2714168, *4 (9th Cir. July 14, 2011). non-cumulat "evidence that is admissible constitutes relevant, 'additional t Rather, otherwise the district court 'shall' consider pursuant to 20 U.S.C. § 1415(i) (2) (C) (ii)." Id.; see also Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1473 (9th Cir. 1993). Plaintiff asserts that Dr. Kaufman's "will assist the Court in deciding if the ALJ was correct the District and the ALJ appropriately education eligibility based exclus standardized test scores. 2 - OPINION AND ORDER u lyon Pl.'s Mem. in ng that M. F. special reliance of M. F. "s , p. 8. P iff maintains that Dr. Kaufman's declaration explains why such scores were not a valid or reliable basis to determine eligibility, evidence that was not presented at the administrative hearing. Defendants respond that Dr. Kaufman's declaration is cumulative and offered to "embellish and undercut the testimony of other witnesses at the hearing without facing below which was closed at cross-examination Administrati ve Law Judge." or plaintiff's the questioning request, of the Def. 's Response, pp. 3-4. However, defendants do not specify how Dr. Kaufman's report is cumulative or unhelpful, and I note that he did not testify earlier in the administrative hearing. Plaintiff has provided a reasonable rationale for bringing this witness forward at this stage of the proceedings, and I do not find that plaintiff is "reserving [her] best evidence for trial," or that she intended to "undercut the statutory role of administrative expertise." 996. Roland, 910 F.2d at Further, defendants may submit a rebuttal declaration if they Finally, choose. if Dr. Kaufman's declaration is cumulative of witnesses already heard by the ALJ, I will decline to consider it. I am mindful that a district court "must be careful not to allow [supplemental] evidence to change the hearing from one of review to a trial de novo." character of the Ojai, 4 F.3d at 1473 (quoting Town of Burlington v. Dep't of Educ., 736 F.2d 773, 791 (lst Cir. exercise my 1984)). It is with this admonition in mind that I discretion 3 - OPINION AND ORDER to allow the supplemental expert ration. As the supplemental evidence re rding damages, I will allow its submission only for purposes of determining appropriate relief in the event plaintiff on her IDEA claims. CONCLUSION Plaintiff's Motion to Supplement (doc. 62) is GRANTED. IT IS SO ORDERED. Dated t s ~~ay of August, 2011. Ann Aiken United States strict Judge 4 - OPINION AND ORDER
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