text:
In international road haulage it is quite common that there is an extensive contractual chain of carriers who accept a transport order and subsequently instruct a subcontractor to carry it out. Often these carriers are referred to as ‘indirect’, ‘paper’ carriers or NVOCC’s. When during the carrier the goods (such as cigarettes or electronics.) are stolen or damaged, the following legal actions will take place. As a Pavlov reflex all parties (in the chain) who are instructed as carriers will start declaratory proceedings before a Dutch court in which they request that the court declares that they can invoke the CMR limitation of liability of 8.33 SDR per Kg (in German these proceedings are referred to as ‘negative Feststellungsklage’). At the same time, the shipper/cargo interested parties will try to start proceedings before a German court in which they will claim damages from the carrier (in German these proceedings are referred to as ‘positive Leistungsklage’). The obvious problem that occurs is that between the same parties in two different countries court proceedings are pending regarding the same subject. The ‘Lis pendens’ in the EU-Regulation 1215/2012 determines in these matters that the court first seised has jurisdiction. This, in order to prevent conflicting court decisions.
The background behind this ‘contest’, who is the first to start court proceedings, is a follows. Art. 17 paragraph 1 of the CMR Convention stipulates that the carrier shall be liable for damage or loss which occurred during the carriage. The grounds for force majeure are fairly limited. Liability of the carrier is quickly assumed. Art. 23 paragraph 3 of the CMR Convention provides for a limitation of liability of 8.33 SDR per Kg, the CMR limitation. Breach of this limitation is regulated in art. 29 of the CMR Convention. This article stipulates that the carrier cannot invoke the CMR limitation if the damage was caused by willful misconduct or by such default considered as equivalent to willful misconduct in accordance with the law of the court seised (the ‘lex fori’). The consequence is that depending on the country were proceedings are initiated the law applicable on breach of the CMR limitation will change. If proceedings are pending in the Netherlands, Dutch law will apply, and if proceedings are pending in Germany, German law. Under Dutch law, the concept ‘recklessness with the knowledge that such damage would probably result from it’ of art. 8:1108 paragraph 1 Dutch Civil Code is used as the interpretation of art. 29 CMR. The Dutch Supreme Court has in the so called ‘Januari 5th rulings’ introduced a very strict measure for this concept. It is very rarely met, and as a consequence breach of the CMR limitation is considered almost impossible in the Netherlands. The measure of art. 29 CMR under German law is considerably less strict. As a consequence a German court will more often than a Dutch court decide to breach the CMR limitation. The conclusion is that whoever is the first to start court proceedings decides whether or not the carrier will be able to rely upon the CMR limitation, or not.
In certain situations it is imaginable that chapter VI of the CMR convention, provisions relating to carriage performed by successive carriers, allows to avoid the practice described above. This is the result of art. 39 paragraph 1 CMR. This article stipulates that a carrier against whom a claim is made as a ‘successive carrier’ is not allowed to dispute the validity of the payment made by the carrier making the claim, if the amount of the compensation was determined by judicial authority after the ‘successive carrier’ had been given due notice of the proceedings and afforded an opportunity of entering an appearance. This article can have the effect that, under circumstance, the ‘successive carrier’ cannot invoke the CMR limitation.
For long time it has been uncertain when there is ‘successive carriage’. If the CMR Convention is interpreted very strict, it seems that the ‘successive carriage’ is carriage by which the goods and CMR Waybill are passed on from one (actual/physical) carrier to another. In the fairly recent ruling of the Supreme Court Veldhuize/Beurskens clarity on the concept ‘successive carriage’ was provided. In that matter the contractual chain was as follows. Shipper (A) instructed carrier (B) for carriage from the Netherlands to Germany. (B) subcontracted this assignment to (C) and (C) in its term subcontracted with (D). (D) was the only carrier in this chain who actually took receipt of the goods and CMR waybill. During the carriage the goods were stolen. (B) started court proceedings in Germany against (C). The end result was that (C) was fully liable against (B), and could not invoke the CMR limitation. (C) started court proceedings against its subcontractor (D) before a Dutch court. The Dutch Supreme court ruled that (D) took over the goods and CMR waybill and was there also a successive carrier. Often the case will be that, as in the Veldhuizen/Beurskens case, the actual carrier is also a ‘successive carrier’. ‘Indirect’ or ‘paper’ carriers are not considered ‘successive carriers’ as they did not actually took over the goods and CMR waybill.
In the ruling Veldhuizen/Beurskens the Supreme Court has also decided on a second point of discussion. This is the question whether the ‘successive carrier’ who in accordance with the stipulations of art. 39 CMR had been given due notice of the proceedings and afforded an opportunity of entering an appearance, when he is confronted with a claim can still invoke the CMR limitation. The result of the German proceedings was that in the relation (B) against (C), (C) could not invoke the CMR limitation. The Dutch Supreme court decided that because the criteria of art. 39 CMR were met, and (D) had the opportunity to join the proceedings, (D) also could not invoke the CMR limitation in the Dutch proceedings.
The regulation regarding the ‘successive carriage’ therefore allows that, despite court proceedings are pending in the Netherlands, the German interpretation of art. 29 CMR will still have effect on the outcome of the Dutch court proceedings. The consequence may be that even when an actual, but successive, carrier is the first to start court proceedings in the Netherlands, the end result may be that he cannot rely upon the CMR limitation. For cargo interested parties, but also for ‘indirect’ or ‘paper’ carriers the regulation regarding the ‘successive carrier’ could give the opportunity to fully recover their damage or loss. For actual carriers the regulation regarding the ‘successive carrier’ is something to bear in mind when starting declaratory court proceedings.

matches:
Art. 17
Art. 23
art. 29
art. 8
art. 29
art. 29
art. 39
art. 39
art. 39
art. 29


Who needs to know about this case: Lawyers bringing personal-injury claims against health-care providers subject to MICRA.
Why it’s important: Holds that negligence in the use and maintenance of equipment used to implement a doctor’s order concerning medical treatment constitutes “professional negligence” under MICRA and is therefore subject to the MICRA statute of limitations (and all other MICRA provisions).
Synopsis: Flores was a patient at Presbyterian Intercommunity Hospital (PIH Health). While attempting to get up from her hospital bed, the latch on the bedrail failed and the rail collapsed, causing her to fall to the floor. Just under two years later, she filed suit against PIH Health, alleging claims for general negligence and premises liability. She alleged that defendant had “failed to use reasonable care in maintaining [its] premises,” “failed to take reasonable precautions to discover and make safe a dangerous condition on the premises,” and “failed to give Plaintiff a reasonable and adequate warning of a dangerous condition so Plaintiff could have avoided foreseeable harm.” Flores claimed she suffered injury as a result. The trial court sustained PIH Healths’ demurrer without leave to amend, as barred by the one-year MICRA statute of limitations, Code Civ. Proc., § 340.5. The Court of Appeal reversed, holding that PIH Health’s alleged failure to use reasonable care in maintaining its premises and its alleged failure to take reasonable precautions to make a dangerous condition safe “sounds in ordinary negligence because the negligence did not occur in the rendering of professional services.” The Supreme Court granted review and reversed.
The Court acknowledged that, “our courts have long recognized, the dividing line between ordinary negligence and professional malpractice may at times be difficult to place,” and that the Courts of Appeal had drawn it differently in cases involving in cases involving alleged negligence in the use or maintenance of hospital equipment or premises.
The Court noted that section 340.5 is not limited to cases involving “those specific tasks that require advanced medical skills and training.” It observed that a medical professional or other hospital staff member may commit a negligent act in rendering medical care, thereby causing a patient’s injury, even where no particular medical skills were required to complete the task at hand. For example, a hospital’s negligent failure to prevent a patient from becoming separated from an oxygen ventilator, for example, occurs in the “rendering of professional services,” regardless of whether it becomes disconnected because of an ill-considered decision by a doctor or being bumped by a janitor’s broom.
The Court rejected, however, the hospital’s proposed rule that “professional negligence” occurs whenever the negligent act violates a state licensing requirement (such as the requirement to keep a hospital premises in good repair.) This approach would transform section 340.5’s special rule for professional negligence – i.e., negligence in the rendering of medical care to patients – into an all-purpose rule covering essentially every form of ordinary negligence that happens to occur on hospital property.
Whether negligence in maintaining hospital equipment or premises qualifies as professional negligence depends on the nature of the relationship between the equipment or premises in question and the provision of medical care to the plaintiff. A hospital’s negligent failure to maintain equipment that is necessary or otherwise integrally related to the medical treatment and diagnosis of the patient implicates a duty that the hospital owes to a patient by virtue of being a health-care provider. Thus, if the act or omission that led to the plaintiff’s injuries was negligence in the maintenance of equipment that, under the prevailing standard of care, was reasonably required to treat or accommodate a physical or mental condition of the patient, the plaintiff’s claim is one of professional negligence under section 340.5.
Labor regulation; wage orders; working conditions; employee seating: Kilby v. CVS Pharmacy, Inc. (2016) __ Cal.4th __ (Cal. Supreme).
“(1) Does the phrase “nature of the work” refer to individual tasks performed throughout the workday, or to the entire range of an employee’s duties performed during a given day or shift?
Arbitration; unconscionability; lack of mutuality of remedy: Baltazar v. Forever 21, Inc. (2016) __ Cal.4th __ (Cal. Supreme).
As a condition of her employment with defendants, plaintiff Maribel Baltazar signed an agreement to resolve any employment-related disputes by arbitration. The agreement provides that, in the event a claim proceeds to arbitration, the parties are authorized to seek preliminary injunctive relief in the superior court. The primary question before the Court was whether that clause rendered the arbitration agreement unconscionable, and therefore unenforceable, because it unreasonably favored the employer. The Court held that that the clause, which does no more than restate existing law (see Code Civ. Proc., § 1281.8, subd. (b)) did not render the agreement unconscionable, and that there were no other reasons to support Baltazar’s claim of unconscionability. Accordingly, it affirmed the Court of Appeal opinion that affirmed enforcement of the arbitration agreement.
In reaching this conclusion, the Court noted that the failure by Forever 21 to provide Baltazar with a copy of the AAA rules for arbitration of employment agreements (which were adopted in the arbitration agreement), did not raise an issue of procedural unconscionability because Baltazar’s arguments for failing to enforce the agreement did not depend in any way on the terms of the arbitration rules.
Public Records Act requests; inadvertent production of privileged documents; waiver: Ardon v. City of Los Angeles (2016) __ Cal.4th __ (Cal. Supreme).
In civil discovery proceedings during the course of litigation between plaintiff Estuardo Ardon and defendant City of Los Angeles, the trial court determined that certain documents the City possessed were privileged under the attorney-client privilege or the privilege for attorney work product, and the City withheld them from plaintiff. Years later, plaintiff filed a request under the California Public Records Act (Gov. Code, § 6250 et seq.) seeking to obtain documents relating to the subject matter of the litigation. In response, the City’s administrative office inadvertently provided the plaintiff with some of the privileged documents. The Court granted review to decide whether the release of privileged documents under these circumstances waives the privilege, thus allowing plaintiff to retain and use the documents and to disseminate them to others. Section 6254.5 of the Government Code, which is part of the Public Records Act, generally provides that “disclosure” of a public record waives any privilege.
But interpreting section 6254.5 in light of the Public Records Act as a whole, the Court concluded that its waiver provision applies to an intentional, but not an inadvertent, disclosure. Accordingly, a governmental entity’s inadvertent release of privileged documents under the Public Records Act does not waive the privilege.
The court explained that contracts formed on the internet tend to come in two flavors: “clickwrap” or click-through agreements, which require the user to click on an “I agree” box after being presented with a list of terms and conditions of use; and “browsewrap” agreements, in which the site’s terms and conditions of use are generally posted on the site via a hyperlink at the bottom of the screen. Because the user can continue to use a site that uses a browsewrap agreement without visiting the page hosting the terms and conditions, the validity of the browsewrap agreement generally turns on whether the user has actual or constructive knowledge of the site’s terms and conditions. More specifically, the validity of a browsewrap agreement typically turns on whether the site put a reasonably prudent user on inquiry notice of the terms of the contract.
Karpinski sued Smitty’s Bar for negligently allowing two intoxicated patrons to stay in the bar and assault him. During a mediation, Karpinski and Smitty’s agreed to settle his claim for $40,000. Karpinski later signed a formal written settlement agreement, which provided that Karpinksi would satisfy any outstanding liens. Smitty’s refused to pay until Karpinski actually satisfied the liens. He filed a motion to enforce the agreement under section 664.4, which the trial court granted. Affirmed.
Nothing in the settlement agreement demonstrated the existence of a condition precedent to payment of the $40,000 to Karpinski. Rather, the agreement states that Karpinski will satisfy all liens and indemnify Smitty’s, its attorneys, and its insurer with respect to any claim arising under a lien or other obligation. There is no provision that either expressly states or implies that Karpinski must satisfy the liens before receipt of the settlement proceeds. The Court held that “public policy does not preclude a court from enforcing a settlement that does not include Medicare as a co-payee on a settlement check where the plaintiff signed a release acknowledging his responsibility to pay any Medicare claim and/or agreeing to indemnify the released parties.” If Smitty’s and its insurer were so concerned about their potential liability to Medicare, they could have negotiated for inclusion of terms in the settlement agreement requiring either Karpinski’s payment of these obligations as a precondition to receipt of the settlement proceeds or inclusion of Medicare as a payee on the settlement check. Smitty’s and its insurer did neither of these things, and must therefore comply with the terms of the agreement as written.
Attorney’s fee applications; in camera inspection of timesheets; due process: Yamada v. Nobel Biocare (9th Cir. 2016) __ F.3d __.
Yamada, a dentist, filed a class action against Nobel alleging that its dental implants were defective. The case settled, and Yamada’s counsel filed a motion for attorney’s fees, which was granted, awarding $4.1 million in fees. At the hearing, the district judge noted that the time records provided by counsel were not sufficient to allow the court to make an award. The court allowed counsel to submit unredacted timesheets for in camera review, finding that this would be more efficient than hearing disputes over what material was privileged and should be redacted. Reversed.
A party opposing an attorney’s fee request has a due process right to see the timesheets on which the court relies in making a fee award. The district court’s failure to make the timesheets available to Nobel was an abuse of discretion.
Sanford was injured in a motorcycle collision with a car driven by Rasnick. Before trial, Rasnick made a § 998 offer for $130,000. The offer included a requirement that Sanford execute and transmit “a written settlement agreement and general release.” Sanford declined the offer, went to trial and recovered less than $130,000. The trial court held that the § 998 offer was valid, and awarded expert fees as part of Rasnick’s costs. Sanford appealed. Reversed.
None of the terms of the required “settlement agreement” were set forth in the offer, or ever communicated to Sanford while the offer was open. While the law allows a defendant to require a settling plaintiff to execute a “release,” a release is not the same as a “settlement agreement.” The terms of a settlement agreement can require considerable negotiation. Because the offer required Sanford to agree to a “settlement agreement” without knowing what terms it would include, it was not a valid offer for the purposes of shifting costs under § 998.


§ 269-1 Adoption of map.
§ 269-2 Map to constitute official finding.
§ 269-3 Changes in locations or boundaries.
§ 269-4 Original map to be on file; copies.
§ 269-5 Map as evidence.
Editor's Note: This ordinance repealed former Art. I, Drug-Free School Zones, adopted 11-10-1988 by Ord. No. 2622-88, as amended.
In accordance with N.J.S.A. 2C:35-7, the Map entitled "Drug Free Zone Map," dated January 20, 2009, prepared by Robert J. Chankalian, Assistant Township Engineer, is hereby approved and adopted as the official finding and record of the location and areas within the municipality of property which is used for school purposes and which is owned by or leased to any elementary or secondary school or school board and of the areas on or within 1,000 feet of such school property.
The Drug-Free School Zone Map approved and adopted pursuant to § 269-1 of this chapter shall continue to constitute an official finding and record as to the location and boundaries of areas on or within 1,000 feet of property owned by or leased to any elementary or secondary school or school board which is used for school purposes until such time, if any, that this chapter shall be amended to reflect any additions or deletions with respect to the location and boundaries of school property and drug-free school zones.
The school board, or the chief administrative officer in the case of any private or parochial school, is hereby directed and shall have the continuing obligation to promptly notify the office of the Township Engineer and the Township Attorney of any changes or contemplated changes in the location and boundaries of any property owned by or leased to any elementary or secondary school or school board and which is used for school purposes.
The Township Clerk is hereby directed to receive and to keep on file the original of the map approved and adopted pursuant to § 269-1 of this chapter and to provide at a reasonable cost a true copy thereof to any person, agency or court which may from time to time request such a copy, along with a certification that such copy is a true copy of the map approved and adopted herein and kept on file. It is hereby further directed that a true copy of such map and of this chapter shall be provided without cost to the Ocean County Clerk and to the office of the Ocean County Prosecutor.
Pursuant to the provisions of P.L. 1988, c. 44, a prosecutor is not precluded from introducing or relying upon any other evidence or testimony to establish a violation of the offense defined in that statute, including use of a map or diagram other than the one approved and adopted pursuant to § 269-1 of this chapter. The failure of the map approved herein to depict the location and boundaries of any property which is, in fact, used for school purposes and which is owned by or leased to any elementary or secondary school or school board, whether the absence of such depiction is the result of inadvertent omission or the result of any changes in the location and boundaries of such property which have not yet been incorporated into a revised approved map, shall not be deemed to be an official finding and record that such property is not owned by or leased to a school or school board or that such property is not used for school purposes.


Pending before the Court are Defendant Lewisville Independent School District's (“LISD”) Motion for Judgment on the Administrative Record (Dkt. #36) and Plaintiff's Motion for Judgment on the Record (Dkt. #37). Having considered the motions and the administrative record, the Court finds that LISD's motion should be granted and Plaintiff's motion should be denied.
Plaintiff E.M. is a student with autism, a speech impairment, orthopedic impairment, and an intellectual disability who is also diagnosed with childhood apraxia of speech and dysarthria. At the time the due process complaint was filed, E.M. was a nine-year-old student in third grade at Independent Elementary School in LISD. However, by the administrative due process hearing below, E.M., was a ten-year-old student receiving private speech therapy and had withdrawn from LISD. At all relevant times E.M. lived with her family in Lewisville, Texas, and LISD was the resident school district for E.M., which was responsible for providing her with a Free Appropriate Public Education (“FAPE”) under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (“IDEA”).
E.M. first enrolled in LISD as a kindergartner, during the 2010-2011 school year. On April 13, 2011, LISD conducted its first Full and Individual Evaluation (“FIE”) for E.M. (AR 2742- 2761). This FIE (“2011 FIE”) identified that E.M. was a student eligible for special education and related services under the IDEA. The 2011 FIE determined that E.M.'s primary mode of communication was “sign approximations, gestures, single-sound diaphragmatically-supported vocalizations, and eye pointing” and that E.M. “did not demonstrate the use of variable-sound articulation to communicate.” (AR 2748). LISD also tested E.M.'s proficiency with an augmentative communication device, which demonstrated E.M. was able to use the device, but was more comfortable using an iPod touch (AR 2748). The 2011 FIE recommended a total communication approach and recommended physical therapy, occupational therapy, speech therapy, small group instruction, social skills training, and a highly structured instructional program for E.M. (AR 2750-2751).
During E.M.'s 2nd Grade Year, E.M.'s Admission, Review, and Dismissal Committee (“ARD Committee”) convened for its annual ARD meeting (“November 2012 ARD Committee Meeting”). E.M.'s parents were present at the meeting. The ARD Committee used the 2011 FIE during the 2012 ARD Committee Meeting. The ARD Committee also reviewed assessments, such as Classroom Assessment Scoring System (“CLASS”) and Verbal Behavior Milestones Assessment and Placement Program (“VB-MAPP”), classroom based assignments, current goals and objectives, parent information, referral data, and teacher observations of student performance.
The ARD Committee determined that E.M. demonstrated the need for occupational therapy, physical therapy, sign language support, transportation, assistive technology, adapted physical education, parent training, transportation during extended school year services, and speech services. The ARD Committee additionally found that assistive technology was necessary for E.M. for a variety of areas, including: communication; visual; writing; physical; self-care; referring to accommodations; reading; math; and environmental. The ARD Committee decided that “[E.M.] needs a small group ratio of 1:1 to 1:3 ratio for acquisition of new language skills.” (AR 2775). The ARD Committee created a variety of goals and objectives and designed a school schedule for E.M., which included 200 minutes of sign language support daily, thirty minutes of direct speech therapy four times a week, and another forty minutes of consult speech therapy a week. These goals and services were all contained in E.M.'s Individualized Education Program (“IEP”) the November 2012 ARD Committee Meeting created (“2012 IEP”).
After a consensus was reached on the 2012 IEP, LISD added additional reading assessments pursuant to one of E.M.'s private providers Gayle Wayman's request; however, LISD determined that it was difficult to administer a reading assessment because of E.M.'s lack of communication. E.M.'s parents called another ARD Committee meeting to discuss E.M.'s reading goals. The ARD Committee convened on May 23, 2013 (“May 2013 ARD Committee Meeting”). During the May 2013 ARD Committee Meeting, the ARD Committee and E.M.'s parents developed a new reading comprehension goal to be implemented along with the 2012 IEP. Additionally, based on concerns raised by E.M.'s mother, the ARD Committee “increase[d] speech services to 480 minutes and a 20 minute consult for the 6 weeks duration of [extended school year services].” (AR 2838). E.M.'s parents provided a copy of E.M.'s progress summary on her 2012 IEP speech goals, which showed little to no progress on all of her 2012 IEP speech goals.
On September 26, 2013, E.M.'s ARD Committee convened for the purpose of the development of the reevaluation of E.M.'s IEP (AR 2859) (“September 2013 ARD Committee Meeting”). E.M.'s ARD Committee requested a new FIE to be completed by November 15, 2013, to include an assessment in speech and language, information from a physician, occupational therapy, physical therapy, adaptive physical education, autism, a functional behavior assessment (“FBA”), cognitive, adaptive behavior, achievement data, assistive technology, functional sign language, CLASS testing, BRIDGE testing, and VB-MAPP updates.
E.M.'s new FIE (“2013 FIE”) was completed on November 12, 2013. The 2013 FIE was developed “through a review of records, parent and teacher questionnaires, a parent interview with [E.M.'s] mother, [C.S.], a teacher interview with Ms. Laura Pedersen, and a developmental history form also completed by [E.M.'s] mother.” (AR 658). Relevant to the parties' disputes here, the 2013 FIE demonstrated that E.M. was a non-oral communicator, who largely was not understood by listeners (AR 662). Despite articulation therapy since March 2011 with a concentration on development of imitative sounds, E.M.'s articulation sounds remained undeveloped, such that she was unable to participate in a standardized articulation test (AR 664). After an informal test, E.M.'s current intelligibility of vocalizations or word approximations was determined to be poor and vocalizations were only understood with support of non-linguistic context (AR 664, 678). At the time, E.M. did not even attempt word approximation unless prompted (AR 678). Moreover, her potential for intelligible speech was determined to be limited (AR 664).
According to the 2013 FIE, E.M. used “gestures, sign language, and Word Wizard on an iPhone to communicate with various speaking partners. She initially used approximated signs or gestures to communicate, generally producing one to two word phrases.” (AR 678). E.M. was able to produce signs for various words and use modified sign language. While communicating with staff, instructors, and general peers (with prompts), E.M. used signs and assistive technology (AR 681). E.M. “demonstrated success when utilizing a high technology device.” (AR 681). In fact, despite her fine motor skills being impacted by her cerebral palsy, E.M. was able to type six words per minute using a computer (AR 667). E.M. also demonstrated extremely low cognitive skills (AR 670-671). However, E.M. was able to follow “100% of verbal directives across all observations from a variety of staff members without sign language interpretation needed. Out of the total directives, E.M. followed 97% of the directives given by various staff members within 3 seconds.” (AR 662).
After LISD completed the 2013 FIE, E.M.'s ARD Committee convened for its first meeting of the annual ARD Committee Meeting to discuss E.M.'s 2013 IEP on November 21, 2013 (“November 2013 Meeting of E.M.'s ARD Committee”). Prior to the November 2013 Meeting of E.M.'s ARD Committee, Laura Pederson, E.M.'s classroom teacher, met with E.M.'s mother to review progress on the 2012 IEP goals. Each evaluator discussed their position of the FIE. Specifically, Brooke Wallace, the campus interventionist, discussed E.M.'s use of interpreter support and stated that if E.M. “does not know the sign she needs to use, she will use her iTouch to type two words and will sometimes type two word phrases.” (AR 2937). The AI teacher observed E.M. use signs, primarily single signs, but also determined that E.M.'s preferred mode of communication was her iPhone (AR 2937). Heather Brandon, the speech language pathologist, determined that E.M. was nonverbal and had an outside diagnosis of Childhood Apraxia Disorder (AR 2938). Further, Laura Reed, the speech language pathologist who also assisted with assistive technology, explained that E.M. used technology successfully and would frequently use her iPhone to respond (AR 2938). The ARD Committee ended the November 2013 Meeting of E.M.'s ARD Committee and agreed to meet again in December.
On December 17, 2013, the ARD Committee reconvened to continue the annual ARD meeting (“December 2013 Meeting of E.M.'s ARD Committee”). E.M.'s ARD Committee determined that extended school year services were necessary for E.M. and developed a Behavior Improvement Plan (“BIP”), which was agreed to by all parties involved (AR 2939). The ARD Committee informed E.M.'s parents that it recommended a discontinuation of a sign language interpreter because E.M. had not increased her use of signs over the past year and she relied heavily on assistive technology to communicate when people did not understand her signs or sign approximations (AR 2939-2940). Moreover, the ARD Committee noted that E.M. was not hearing impaired and, thus, could be successful in the general education setting without her sign langue interpreter (AR 2940). As to voice approximations, the ARD Committee also reviewed the private speech and language evaluation from Dr. Vincent J. Carbone, a Board Certified Behavioral Analyst (AR 2940). Additionally, E.M.'s mother had the opportunity to question E.M.'s speech teacher and classroom teacher about how often they encouraged E.M. to use vocalizations (AR 2940). E.M.'s mother also requested that the speech therapist who works with E.M. should be trained in apraxia, and the ARD Committee agreed (AR 2940). The ARD Committee discussed the proposed IEP goals and made corrections when necessary in addressing questions by E.M.'s mother (AR 2940). Everyone agreed to implement the new academic IEP goals, which meant that the speech therapist would continue to work on goals agreed to in the November 2013 Meeting of E.M.'s ARD Committee, the classroom teacher would work on integrated speech goals, but the speech language pathologist would not (AR 2940). The ARD Committee agreed to continue the annual meeting until January 2014.
On January 15, 2014, the ARD Committee reconvened to continue the annual ARD meeting (“January 2014 Meeting of E.M.'s ARD Committee”). At the January 2014 Meeting of E.M.'s ARD Committee, E.M.'s mother expressed concern regarding assistive communication goals and Wallace, the behavior interventionist, explained how E.M. would be able to communicate using assistive technology (AR 2941). The board certified behavior analyst did not agree that this was the best way to promote language skills (AR 2941). However, the ARD Committee emphasized that it should focus on E.M.'s primary mode of communication, which it concluded was assistive technology (AR 2941). The ARD Committee continued to discuss functional modes of communication: Pederson expressed concerns regarding the verbal behavior curriculum; Wallace expressed concern about implementing an icon/picture based form of communication; and E.M.'s mother questioned the credentials of the ARD Committee members, but Susan Standish, the Director of Special Education, assured her that the ARD Committee members are trained professionals (AR 2941). The ARD Committee agreed to add the ability for E.M. to use any mode of communication to respond to language art goals (AR 2942). Brandon explained that direct articulation goals were not recommended because of E.M.'s lack of progress in articulation and that instead LISD is only recommending integrated speech goals. (AR 2942). E.M.'s father pointed out that there were discrepancies between progress in the extended school year reports and the instructional year, but then Brandon explained that E.M.'s progress was limited and was prompt dependent (AR 2942). The ARD Committee continued the meeting until February.
On February 3, 2014, the ARD Committee reconvened for the annual ARD meeting (“February 2014 Meeting of E.M.'s ARD Committee”). The focus of the meeting was E.M.'s speech goals (AR 2943-2944). E.M.'s mother had presented proposed speech goals at the January 2014 Meeting of E.M.'s ARD Committee, which the LISD speech advisory group reviewed (AR 2943). LISD did not recommend accepting the proposed goals, and explained its reasoning. The ARD Committee discussed that E.M. showed limited progress on articulation goals, mainly required prompting, and E.M. used an augmentative device; accordingly, LISD wanted to continue to develop E.M.'s skills on this device (AR 2943). However, the ARD Committee emphasized that the current goals still supported a total communication approach in the classroom. E.M.'s mother questioned the way LISD collected data (AR 2943). The ARD Committee explained the methods by which LISD takes and collects data, but was not able to provide the data to E.M.'s mother when she asked (AR 2943). Standish explained that the 2013 FIE supported discontinuing direct speech therapy and, instead addressing vocalizations in the classroom. Pederson explained how she addresses vocalizations in response to a question from E.M.'s mother (AR 2944). LISD supported its recommendation to discontinue its articulation goals with the American Speech Language Hearing Association's (“ASHA”) guideline to discontinue articulation when benefit is not being made (AR 2944). The ARD Committee decided to continue the meeting to another time.
On March 21, 2014, the ARD Committee reconvened to continue the ARD annual meeting (“March 2014 Meeting of E.M.'s ARD Committee”). E.M.'s mother began to question goals that had been previously agreed to be implemented in the December 2013 Meeting of E.M.'s ARD Committee and then stated concern about data collection and manding based on Dr. Carbone's reports (AR 2945). The ARD Committee reviewed Dr. Carbone's newest information, but determined that it contradicted his previous report (AR 2945). Allison Oeffner, E.M.'s general education teacher discussed E.M.'s interactions in the classroom and E.M.'s mother requested a new goal of spontaneous interaction with peers (AR 2945). Based on this request, LISD agreed to collect data and determine whether such goal is necessary (AR 2945). Wallace again explained how data was collected in this case (AR 2945). LISD also agreed to collect more data regarding E.M.'s mands and to adjust the goal if the data reflects it is necessary. E.M.'s mother additionally requested that a Present Levels of Academic and Functional Performance (“PLAAFP”) statement be added to LISD's PLAAFP, to which LISD agreed (AR 2945). E.M.'s mother objected that “Speech Therapy goal #1” did not provide for a 1:1 ratio, but the speech therapist identified that the Autism Supplement suggested a 1:1 to a 1:3 ratio and that a small group setting or direct speech therapy would be successful (AR 2946). E.M.'s father shared information regarding articulation goals for students with apraxia from ASHA. The ARD Committee added an additional accommodation to encourage E.M. to use vocalizations/approximations (AR 2946). E.M.'s parents requested an Independent Educational Evaluation (“IEE”) because they disagreed with the 2013 FIE (AR 2947). The ARD Committee agreed to continue the meeting for ten days.
On April 4, 2014, the ARD Committee reconvened to continue the ARD annual committee meeting (“April 2014 Meeting of E.M.'s ARD Committee”) (collectively with other committee meetings, “2013-2014 Annual ARD Committee Meeting”). E.M.'s parents suggested changes to accommodations, occupational therapy goals, BIP goals, and the autism supplement, and the ARD Committee agreed to the changes (AR 2948-2949). The 2013-2014 Annual ARD Committee Meeting ended in a non-consensus (AR 2949).
On April 14, 2014, Plaintiff filed a special education due process hearing request (the “first due process hearing”) with the Texas Education Agency pursuant to the IDEA. The first due process hearing was held before a Special Education Hearing Officer (“SEHO”) in March 2015. On May 22, 2015, the SEHO issued a decision finding that the LISD provided Plaintiff with a free appropriate public education as required by the IDEA. On August 20, 2015, Plaintiff filed a complaint with the Court appealing the SEHO's decision (Dkt. #1).
While the first due process hearing was pending, Plaintiff filed a second special education due process hearing request (the “second due process hearing”) on March 26, 2015. On August 21, 2015, the SEHO dismissed the second due process hearing, holding that the first due process hearing barred the second due process hearing by collateral estoppel, res judicata, and preclusion. On December 10, 2015, Plaintiff filed an Amended Original Complaint with the Court appealing the dismissal of the second due process hearing (Dkt. #2). Plaintiff filed a Second Amended Original Complaint on May 13, 2016 (Dkt. #14). LISD filed a Motion to Dismiss Part of Plaintiff's Second Amended Original Complaint on May 27, 2016 (Dkt. #15) asking the Court to dismiss claims regarding the second due process complaint because Plaintiff failed to properly exhaust her remedies. The Court granted the motion on January 9, 2017, and dismissed Plaintiff's appeal of the second due process hearing for lack of subject matter jurisdiction (Dkt. #24).
On May 12, 2017, LISD filed a Motion for Judgment on the Administrative Record (Dkt. #36). On June 12, 2017, Plaintiff filed a response (Dkt. #41). On June 30, 2017, LISD filed a reply (Dkt. #43). On July 14, 2017, Plaintiffs filed a sur-reply (Dkt. #47). On May 12, 2017, Plaintiffs filed a Motion for Judgment on the Record (Dkt. #37). On June 9, 2017, LISD filed a response (Dkt. #38). On July 6, 2017, Plaintiffs filed a reply (Dkt. #45). On July 14, 2017, LISD filed a sur-reply (Dkt. #46).
This case arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482. The IDEA's purpose is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living[.]” 20 U.S.C. § 1400(d)(1)(A).
States receiving federal assistance under the IDEA must: (1) provide a “free appropriate public education” (“FAPE”) to each disabled child within its boundaries, and (2) ensure that such education is in the “least restrictive environment” (“LRE”) possible. Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 247 (5th Cir. 1997); 20 U.S.C. § 1412(a)(1), (5). The FAPE provided must be developed to each disabled child's needs through an “individual education program” (“IEP”). Michael F., 118 F.3d at 247; see 20 U.S.C. § 1414(d). In Texas, the committee responsible for preparing an IEP is known as an Admissions, Review, and Dismissal committee. Michael F., 118 F.3d at 247.
“When a parent challenges the appropriateness of an IEP, a reviewing court's inquiry is two-fold.” Hous. Indep. Sch. Dist. v. V.P., 582 F.3d 576, 583 (5th Cir. 2009). “The court must first ask whether the state has complied with the procedural requirements of the IDEA, and then determine whether the IEP developed through such procedures was ‘reasonably calculated to enable the child to receive educational benefits.'” Id. at 583-84 (citation omitted). “If the court finds that the state has not provided an appropriate educational placement, the court may require the school district to reimburse the child's parents for the costs of sending the child to an appropriate private school or institution.” Id. at 584 (citations omitted). “Reimbursement may be ordered only if it is shown ‘that (1) an IEP calling for placement in a public school was inappropriate under the IDEA, and (2) the private school placement . . . was proper under the Act.'” Id. (citation omitted).
courts must be careful to avoid imposing their view of preferable educational methods upon the States. The primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child's needs, was left by the Act to the state and local educational agencies in cooperation with the parents or guardians of the child.
The party seeking relief under the IDEA bears the burden of proof. Schaffer v. Weast, 546 U.S. 49, 62 (2005). Specifically, “a party attacking the appropriateness of an IEP established by a local educational agency bears the burden of showing why the IEP and the resulting placement were inappropriate under the IDEA.” Michael F., 118 F.3d at 252.
Plaintiff argues that the Court should disregard the SEHO's findings and credibility determinations. Further, Plaintiff asserts LISD did not provide E.M. a FAPE under the IDEA and committed both procedural and substantive violations. Plaintiff additionally claims that based on these violations, Plaintiff is entitled to reimbursement and attorneys' fees. LISD counters that it provided E.M. with a FAPE pursuant to the IDEA and, thus, reimbursement and attorneys' fees are inappropriate.
The first due process hearing was held before the SEHO in March 2015. On May 22, 2015, the SEHO issued a decision finding that the LISD provided Plaintiff a FAPE as required by the IDEA.
Plaintiff argues that the SEHO's findings of fact do not warrant any deference because the SEHO erroneously gave weight to LISD witnesses whose testimony was not supported by extrinsic, non-testimonial evidence. Plaintiff asserts that the SEHO applied different standards to the witnesses and found Plaintiff's witnesses less credible simply because the SEHO agreed with LISD's position. (Dkt. #37 at pp. 17-18) (citing K.S. v. Fremont Unified Sch. Dist., 545 F.Supp.2d 995, 1003-04 (N.D. Cal. 2008)). Plaintiff further asserts that the SEHO ignored testimony of E.M.'s private speech providers and her private Board Certified Behavior Analyst. LISD maintains that the Court should not disturb the SEHO's findings or credibility determinations.
Under the IDEA, “[t]he district court must receive the state administrative record and must receive additional evidence at the request of either party.” Id. The Court must reach an independent decision based on a preponderance of the evidence. However, “due weight” is to be given to the hearing officer's decision. Rowley, 458 U.S. at 206 (1982). While the Court is to give “due weight, ” such is not necessary “when its own review of the evidence indicates that the [SEHO] erroneously assessed the facts or erroneously applied the law to the facts.” Teague Indep. Sch. Dist. v. Todd L., 999 F.2d 127, 131 (5th Cir. 1993).
Plaintiff has cited no supporting authority for her contention that witnesses need to have extrinsic, non-testimonial evidence to support their contentions. To the contrary, LISD presented case law, albeit outside the Fifth Circuit, to suggest that the SEHO's credibility determinations should not be disturbed unless there is “non-testimonial, extrinsic evidence in the record that would justify a contrary conclusion.” (Dkt. #38 at p. 2) (quoting Carlisle Area Sch. v. Scott P., 62 F.3d 520, 529 (3d Cir. 1995); McCalister v. Dist. of Columbia, 45 F.Supp.3d 72, 76-77 (D.D.C. 2014)). Moreover, the Court has previously found that the SEHO has the “opportunity to observe witnesses and make credibility determinations.” Shafi v. Lewisville Indep. Sch. Dist., No. 4:15-cv-599, 2016 WL 7242768, at *9 (E.D. Tex. Dec. 15, 2016). While the Court is not making a decision on what the correct standard is in the Fifth Circuit, it is not convinced that each witness's testimony must be supported by extrinsic, non-testimonial evidence. As such, this does not serve as a basis to discredit any witness or the SEHO's decisions.
Further, the case Plaintiff relied on to argue the applied different standards to different witnesses, presented clear findings from the SEHO that demonstrated the SEHO found the plaintiff's witnesses less credible because their testimony contradicted that of witnesses from the district. K.S., 545 F.Supp.2d at 1004 (detailing the SEHO's findings to be that the plaintiff's testimony was flawed because “they ‘contradicted the testimony [that plaintiff made significant progress] of the people who created the records, '” and explaining that relying on witnesses who made the records just because they made the record would eliminate the need for due process hearings). Further, the K.S. court determined that the credibility determinations were “based primarily on non-testimonial substantive issues.” Id.
Here, a majority of the SEHO's credibility determinations were based on testimony as opposed to non-testimonial issues. (AR 10-12) (“An SLP for the district testified credibly that the student may develop a core vocabulary of ten to fifteen words but that such acquisition of vocabulary could take as much as fifteen years.”; “This conclusion [, the IEE's conclusion that sign language was E.M.'s primary mode of communication, ] was not credible because the district established with credible testimony that sign language was not the student's primary mode of communication.”; “District personnel testified credibly that that the drafted goals were appropriate for the student.”; “The credible testimony of experts for the district supports the district's proposed plans for the student.”) (emphasis added). Moreover, there is no indication in the record that the SEHO made its credibility determinations simply because a witness agreed or did not agree with LISD's decision. Accordingly, the Court does not find a reason to disregard the SEHO's credibility determinations.