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Effectively Preparing and Presenting Expert Testimony at OAH Hearings

by Diane Mihalsky, Administrative Law Judge
Vol. 16 July 2000

Director’s note: OAH is committed to fairness and making hearings accessible to both attorneys and parties who choose to represent themselves. This article is the second in what we at OAH plan to be a series of informational articles to educate the public and parties who appear before us about the hearing process and how to better present their cases.

INTRODUCTION
Overview
An expert is a person who, through education or experience, has acquired scientific, technical, or other specialized knowledge about a particular business, trade, profession, or occupation. In legal matters, experts are contrasted with lay persons, who may be intelligent and articulate but lack specialized education or extensive experience in the particular business, trade, profession, or occupation at issue.

If a party decides to offer expert testimony or documents prepared by an expert, the party should be prepared to establish the expert’s qualifications. This can be done with a Curriculum Vitae or other document that lists the expert’s education, experience, membership in professional organizations, and other credentials. If the parties offer into evidence inconsistent or contradictory opinions from their two respective experts, the administrative law judge (“ALJ”) must decide which expert is more credible to resolve the dispute. That one expert is better educated or more experienced, is a specialist as opposed to a generalist, or has rendered an opinion based on a personal inspection or examination, rather than relying on reports or other records prepared by others, are all matters that should be offered into evidence and made a part of the record to help the ALJ fairly resolve the parties’ dispute.

Cases Involving Licensed Professionals
State agencies regulate many professions by issuing licenses, certifications, or other credentials to persons who have demonstrated that they meet statutory requirements of education, experience, and good character. Thus, the Board of Accountancy licenses and regulates Certified Public Accountants, the Board of Appraisals certifies and regulates appraisers, the Registrar of Contractors licenses and regulates contractors, the Board of Medical Examiners licenses and regulates allopathic doctors, and the Department of Health Services regulates child care workers. OAH conducts hearings involving these and many other state agencies that regulate various professions.

The assumption underlying licensing requirements is that members of the regulated profession need a higher level of specialized education and expertise than is possessed by lay persons to practice the profession competently. The issue of whether a licensed professional has met or departed from the standard of care applicable to his or her profession generally can be answered only through expert testimony.

Cases Where a Party Seeks to Become Licensed
If an agency has denied a license or certification, the applicant has the burden to show that he or she is qualified and should have been issued the license or certification. Because the person does not have a license or certification, he or she will not be able to testify credibly as an expert.

If the denial is based on the applicant’s lack of expertise or experience, the applicant might want to present a licensed or certified expert’s testimony that the applicant in fact possesses the requisite experience or expertise.

If the agency has denied the license because of concerns about the applicant’s character, for example, due to a prior criminal conviction, the applicant may be able to show rehabilitation through character witnesses. Character witnesses need not be experts because good character and credibility are matters considered to be within the experience and expertise of lay persons.

Cases Where One of the Parties Is Licensed In cases in which one of the parties holds a license or certification (is “a licensee”) he or she may testify as an expert on his or her own behalf. If a state agency (or a homeowner in many cases involving the Registrar of Contractors or the Department of Building and Fire Safety) seeks to revoke or otherwise sanction the licensee’s license, the agency or homeowner has the burden of proof to establish a departure from the applicable standard of care. If the agency or homeowner presents no expert testimony to support a departure, the claim may be dismissed.

If the ALJ finds that the departure from the applicable standard of care is so grossly apparent that a lay person could recognize it, expert testimony may not be necessary. These kinds of cases are rare, however, and an ALJ may be reluctant to agree with a lay person if a licensee testifies to the contrary.

Compliance with professional standards, like beauty, often lies in the eye of the beholder. The ALJ must base his or her decision or recommendation on matters in evidence and may not consider extraneous matters that the parties have not made part of the record. Although the ALJ may ask the witnesses questions to develop the record and support a just result, the ALJ’s questions are not evidence. Only the witnesses’ responses are evidence. The ALJ must depend on the parties to make a record which will support the ALJ’s recommendation.

Therefore, if the complainant has not offered into evidence competent testimony from a person who holds a license or some other indicia of special expertise or training that a licensee’s conduct or workmanship fell below applicable standards, the ALJ may recommend an outcome adverse to the complainant. If the agency’s inspector or investigator has rendered an opinion that the licensee complied with applicable standards, the other party may want to consult or retain an independent expert to see if that expert disagrees with the opinion of the agency’s inspector or investigator.

ALJs may consider reports and other materials prepared by a party’s expert even if the expert does not testify. Because both the ALJ and the party’s opponent may have questions about or objections to the report, however, the report probably will be more persuasive if the expert author is available to testify.

Other Cases
Some cases do not involve licensing or certification but require expert testimony or evidence for resolution. For example, whether a certain treatment is “medically necessary” requires expert evidence from qualified doctors and other health care professionals, including the applicant’s treating physician or a health care provider. A lay person generally cannot establish, without expert evidence, that one treatment as opposed to another is “medically necessary.” Similarly, where a special diagnosis is among the criteria for eligibility for certain benefits, the qualifying diagnosis must be made by a specially trained psychiatrist or psychologist. A lay person generally is not competent to make medical diagnoses.

ALJs in the Office of Administrative Hearings may consider medical reports, records and other evidence that might not be admissible in a judicial proceeding. If a treating health care provider has prescribed a certain treatment, the ALJ may consider the prescription as evidence of medical necessity. Likewise, if a treating health care provider has prepared a report in which he or she has made a diagnosis that potentially may qualify the party for benefits, the ALJ may consider that report as evidence of eligibility. The ALJ generally may consider medical records, reports, letters, prescriptions, and the like even if the author does not testify in person or telephonically at the hearing.

Conclusion
OAH proceedings are generally quicker and less expensive than judicial proceedings because our rules of procedure are relatively simple and ALJs may consider all relevant evidence, regardless of whether it would be admissible in a judicial proceeding. But, because ALJs can only make recommendations based on the record that the parties make, the parties still need to consider the issues beforehand and to come to the hearing prepared to offer evidence, including expert testimony or documentation, to support their defense or claim.

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