L.S. et al v. Calhan School District RJ-1 et al

Filing 58

PRE-EVIDENTIARY HEARING ORDER by Judge Lewis T. Babcock on 3/3/16. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:15-cv-00426-LTB-MJW
L.S., by and through his parents and next friends, E.S. and J.S.,
Plaintiff,
v.
Pikes Peak Board of Cooperative Educational Services,
Defendant.

PRE-EVIDENTIARY HEARING ORDER
Plaintiff, L.S. by and through his parents and next friends, E.S. and J.S. and Defendant,
Pikes Peak Board of Cooperative Educational Services (BOCES), by and through their attorneys,
hereby submit this Pre-Evidentiary Hearing Order as follows:
I.

EXHIBITS
Defendant will present the evidence authorized by the Court’s February 11, 2016 Order as

follows:
1. February 3, 2015 Incident Report
2. Dr. Freeman’s April 2016 Evaluation Report
3. May 2015 Individualized Education Program (IEP)
Also, Defendant will proffer documentation of an additional behavior incident and meeting
convened in December 2015, after the Pikes Peak BOCES had submitted the Motion for
Additional Evidence.
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Counterclaim-Defendant may present the following exhibits:
1. Behavior Reduction Progress summaries 12/18/2014 – 10/09/2015 (only post-hearing
progress reports provided by Defendants)
2. L.S. Daily Reports 12/18/2014 – 12/11/2015
3. Emerge’s August 2015 Independent Educational Evaluation Report
4. April 6, 2015 Letter from Bruce E. Grabert, M.D.
5. April 9, 2015 Signed Consent for Evaluation
II.

WITNESSES
Defendant will present the following witnesses:
1. David Slothower, Principal
Estimated Length of Testimony: 45 -60 minutes
Mr. Slothower will testify regarding Plaintiff’s physical attack on a staff member at

school in February 2015 during which the Principal intervened directly and for which he oversaw
the creation of a report that documented this serious event, classified by police as second-degree
assault. Also, Mr. Slothower will testify regarding subsequent behavioral incidents, specifically
including an incident that occurred on December 11, 2015 in a general education class during
which L.S. became aggressive towards himself, physical property and staff, including Mr.
Slothower.
2. Dr. B.J. Freeman
Estimated Length of Testimony: 2 hours
Dr. Freeman will testify regarding her evaluation of L.S. conducted in March/April 2015,
the results of that evaluation, and how the new information provided by the evaluation impacts,

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if at all, her opinions as expressed at the due process hearing regarding L.S.’s educational needs,
Defendant’s offer of FAPE, and the appropriate educational setting for L.S.
Counterclaim-Defendant may present the following witnesses:
1. Alicia Christie, L.S.’s Former Paraprofessional
Estimated Length of Testimony: 60 minutes
Alicia Christie was the staff member who was involved in the February 2015 behavior
incident. Ms. Christie will also testify that she remained L.S.’s paraprofessional despite the
incident until she was constructively discharged by Defendant in October 2015 for her
communication with L.S.’s parents. Ms. Christie will testify about her observations and
impressions of L.S. immediately prior to the incident, during the incident, and after the incident
and her observation that L.S. suffered a seizure which precipitated the behavior incident. Ms.
Christie will also testify about L.S.’s behavior at Calhan High School before and after the
incident.
2. Dr. Helena Huckabee
Estimated Length of Testimony: 2 hours
Dr. Huckabee will testify regarding her evaluation of L.S. in July/August of 2015 and the
results of that evaluation. Dr. Huckabee will rebut the opinions offered by Dr. Freeman
regarding an appropriate educational placement for L.S. and will testify about the
recommendations for L.S.’s educational placement at Calhan High School set forth in the Report.
Dr. Huckabee will also testify in conformance with her deposition testimony. Dr. Huckabee may
provide further rebuttal testimony based on the evidence presented by Defendant.

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3. Dr. Bruce E. Grabert
Estimated Length of Testimony: 1 hour
Dr. Grabert is L.S.’s pediatric neurologist and will testify about L.S.’s epilepsy and
seizure history and how that impact’s L.S.’s access to education. Dr. Grabert will testify about
his communications with Defendant, both orally and in writing, regarding his opinion that it
would be medically dangerous to change L.S.’s educational placement to a separate school in
Colorado Springs, CO; that this daily transport would increase the likelihood of grand mal
seizures; and that the lack of medical facilities between Calhan and Colorado Springs is
medically concerning if L.S. suffers a grand mal seizure en route. Dr. Grabert will testify that
because of L.S.’s intractable seizure disorder, it is his opinion that L.S.’s educational placement
should remain at Calhan High School. Dr. Grabert will also testify in conformance with his
deposition testimony. Dr. Grabert may provide further rebuttal testimony based on the evidence
presented by Defendant.
4. E.S.
Estimated Length of Testimony: 1 hour
E.S. is L.S.’s father. E.S. will testify regarding his observations and impressions
regarding the February 2015 and the December 15, 2015 behavior incidents. E.S. will also
testify regarding his communications with Principal Slothower about whether there was any
concerns regarding L.S.’s safety or the safety of others at Calhan High School following the
February 2015 incident. E.S. will testify regarding his communications with Mr. Slothower that
he does not work outside the home and is available within minutes to assist in any manner with
regard to any perceived or real safety issues that may involve L.S. a Calhan High School. E.S.

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will also testify about his offer to be present in or at Calhan High School for any period of time if
there is any perceived concern about L.S.’s safety or the safety of others, and Mr. Slothower’s
rejection of said offer. E.S. will also testify about L.S.’s epilepsy and seizure history from the
date of the due process hearing to the present. E.S. may provide further rebuttal testimony based
on the evidence presented by Defendant.
III.

ANTICIPATED DISPUTED EVIDENTIARY ISSUES
Defendant objects to Plaintiff’s evidence as outside the scope of IDEA’s additional

evidence standard and beyond the scope of proper rebuttal evidence. In particular, Plaintiff now
indicates an intent to adduce evidence from Dr. Grabert that Plaintiff had identified for the
administrative hearing below but elected not to present as a matter of trial strategy. Also,
Defendant objects to Plaintiff’s plan to introduce Exhibits 1 and 2 as beyond the scope of
rebuttal evidence. If such exhibits totaling over 300 pages are admitted, Defendant will be
required to present additional witnesses to authenticate and explain the exhibits and to present
additional educational records to provide the appropriate context for Plaintiff’s select exhibits.
Also, Defendant notes Plaintiff’s identification of exhibits and summaries of testimony contain
misleading factual inaccuracies and reserves any related objection. Finally, Defendant objects to
Plaintiff’s planned testimony that extends beyond the witnesses’ direct knowledge and
expertise.
Counterclaim-defendant reserves its objections to the admission of additional evidence
previously presented to the Court. Counterclaim-defendant has requested all of L.S.’s education
records subsequent to the date of the December 10-12, 2015 due process hearing and believes

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that Defendant has not produced all of the education records. Counterclaim-defendant reserves
the right to supplement his rebuttal evidence should further education records be produced.
DATED: March 3, 2016, in Denver, Colorado.
BY THE COURT

s/ Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE

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