1:22-cv-02118
D. MarylandSep 17, 2025Background
- Plaintiff Luma Halig sued the National Board of Examiners of Optometry (NBEO) under the ADA alleging denial of requested exam accommodations; bench trial scheduled.
- Plaintiff sought permission for two expert witnesses (Dr. Joshua Wolff and Jamie Axelrod) to testify remotely shortly before trial, citing travel/work/financial burdens.
- Dr. Wolff authored a 2017 psychoeducational evaluation relied on by Plaintiff to justify accommodations; Defendant previously sought to strike the report at summary judgment but the court allowed its consideration there.
- The court previously ruled in the summary-judgment opinion that Plaintiff is disabled under the ADA for purposes of that motion, but denied both parties’ summary-judgment motions and left disputed factual issues for trial.
- At pretrial, Defendant identified defenses focused on whether the requested accommodation was reasonable, would fundamentally alter the exam, or would pose safety concerns; it did not specifically preserve a trial contest that Plaintiff lacks a disability.
- Court dispositions here: denies the remote-testimony request; allows the parties to contest admissibility of Dr. Wolff’s evaluation at trial; holds Defendant waived the right to challenge at trial whether Plaintiff is disabled under the ADA (based on pretrial order omissions).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Motion to permit contemporaneous remote testimony by two expert witnesses | Wolff and Axelrod should be allowed to testify remotely due to professional obligations and financial hardship to Plaintiff | Motion lacks good cause/compelling circumstances; travel cost/inconvenience are foreseeable and do not justify remote testimony; deposition alternative was available | Denied — court exercises discretion under Rule 43(a); timing and predictable nature of burdens weigh against remote testimony |
| Admissibility of Dr. Wolff’s 2017 evaluation | Report is authentic and previously considered at summary judgment; Plaintiff says admissibility was resolved and the report should be admitted | Defendant may challenge admissibility at trial despite earlier use at summary judgment | Defendant may challenge admissibility at trial; prior summary-judgment use did not waive admissibility objections |
| Whether Plaintiff’s disability status is precluded from being litigated at trial (law-of-the-case / preclusion) | Court already held Plaintiff is disabled in the summary-judgment opinion; that determination should bind Defendant at trial | Summary-judgment context did not resolve all issues; Defendant reserved arguments and may challenge disability at trial | Held that Defendant waived a trial challenge to the fact of disability by failing to preserve that issue with specificity in the joint pretrial order; Defendant may, however, litigate whether accommodation was reasonable or necessary |
| Appropriate remedy if ADA violation found (relief re: discontinued exam) | Plaintiff seeks relief for denied accommodation on the prior CSE | Defendant argues CSE no longer exists and injunctive relief ordering additional time on the CSE is impracticable; PEPS is the new exam and Plaintiff hasn’t applied | Court declines to decide remedy now; remedy issues are not ripe and may require a subsequent proceeding if liability is found |
Key Cases Cited
- Lopez v. NTL, LLC, 748 F. Supp. 2d 471 (D. Md. 2010) (discusses standard and circumstances warranting contemporaneous video testimony)
- United States v. Kivanc, 714 F.3d 782 (4th Cir. 2013) (trial court has discretion over remote testimony)
- Beltran-Tirado v. INS, 213 F.3d 1179 (9th Cir. 2000) (geographic distance may support video testimony)
- Thornton v. Snyder, 428 F.3d 690 (7th Cir. 2005) (technology is an imperfect substitute for live testimony)
- Guthrie v. Am. Broad. Cos., Inc., 733 F.2d 634 (4th Cir. 1984) (remedy for non-attending out-of-district witness is deposition)
- McLean Contracting Co. v. Waterman Steamship Corp., 277 F.3d 477 (4th Cir. 2002) (failure to identify issues in pretrial order waives right to try those issues)