LUMA HALIG, Plaintiff, v. NATIONAL BOARD OF EXAMINERS OF OPTOMETRY, Defendant.
Civil No. 22-2118-BAH
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
September 17, 2025
Brendan A. Hurson, United States District Judge
Case 1:22-cv-02118-BAH Document 95 Filed 09/17/25
Plaintiff Luma Halig brought suit against Defendant National Board of Examiners of Optometry alleging that Defendant violated the Americans with Disabilities Act (“ADA“),
A. Relevant Facts/Arguments of the Parties
Plaintiff asks the Court to permit two witnesses—Dr. Joshua Wolff and Jamie Axelrod, Plaintiff‘s expert witness—to testify remotely at trial pursuant to
1. Dr. Joshua Wolff
Plaintiff argues that “[i]t would be a hardship for Dr. Wolff to travel to Maryland for testimony in this matter given his professional responsibilities.” ECF 91, at 2. Moreover, Plaintiff asserts that it would “present a financial hardship to [Plaintiff] to cover the costs of travel and expenses.” Id. Plaintiff also notes that Dr. Wolff‘s evaluation and testimony is central to trial, but he has not been deposed, so “there is no deposition to introduce in his stead.” Id. at 2, 4. Plaintiff attaches to her Motion as Exhibit 1 an affidavit from Dr. Wolff, vaguely addressing these constraints. See ECF 91-1, at 2–3. In his affidavit, Dr. Wolff states further that his “employer does not permit remote or telework except for official, employment-related reasons,” so he would be “require[ed] to request formal administrative leave for all days of travel and [his] appearance, approval for which is not guaranteed.” ECF 91-1, at 2 ¶ 6.
Plaintiff cites to
2. Jamie Axelrod
Plaintiff next argues that Mr. Axelrod should be permitted to testify remotely because he is “located in Arizona and traveling to Maryland to provide testimony would present a professional hardship to Mr. Axelrod, given his position at a university, particularly at this time of year.” ECF 91, at 4. However, Plaintiff does not provide an affidavit from Mr. Axelrod affirming or explaining these constraints. Additionally, Plaintiff contends that Mr. Axelrod‘s in-person testimony would “present a significant financial hardship for [Plaintiff] who would be responsible for covering the costs of travel and lodging for Mr. Axelrod in addition to his fees for time spent testifying.” Id. Finally, Plaintiff asserts that Mr. Axelrod‘s remote testimony “would not prejudice the Defendant, who had the opportunity to and did depose Mr. Axelrod, or impact the value of his testimony or the Court‘s ability to observe his demeanor or other visual indicators of credibility.” Id. at 5.
3. Defendant‘s Opposition
With respect to both witnesses, Defendant argues that Plaintiff “has not presented good cause for introducing remote testimony at trial” because there are no “unforeseen circumstances or unexpected issues in this case” that would preclude the witness‘s live testimony. ECF 92, at 3. Defendant suggests that Plaintiff has articulated “at most mere inconveniences, not hardships.” Id. at 5. For example, Defendant argues that “[t]he distance and cost of travel alone, as alleged here, does not warrant remote testimony by video absent some unforeseen circumstance.” Id. at 4 (first citing Lopez v. NTI, LLC, 748 F. Supp. 2d 471, 481 (2010); and then citing Humbert v. O‘Malley, No. CIV. WDQ-11-0440, 2015 WL 1256458, at *2 (D. Md. Mar. 17, 2015)). As to Dr. Wolff,
Additionally, Defendant emphasizes that the Court “issued the Trial Scheduling Order back in December 2024.” Id. at 4 (citing ECF 73). Defendant asserts that Plaintiff‘s counsel knew about the trial date for nine months and thus “had months to secure [the witnesses‘] appearances prior to trial,” or otherwise “should have preserved their testimony via deposition, just like it has been preserved for other witnesses in this case.” Id. at 3. However, “given that Mr. Axelrod was deposed” by Defendant, Defendant notes that “his deposition testimony could be utilized in lieu of live testimony because depositions ‘provide a superior means of securing the testimony of a witness who is beyond the reach of a trial subpoena.‘” Id. at 5 (quoting
B. Analysis
“Federal Rule of Civil Procedure 43 governs the taking of testimony at trial.” Lopez v. NTI, LLC, 748 F. Supp. 2d 471, 479 (D. Md. 2010). Rule 43 generally provides that a witness‘s “testimony must be taken in open court.”
“Although Rule 43 provides some flexibility in accepting remote testimony, it seems obvious that remote transmission is to be the exception and not the rule.” Lopez, 748 F. Supp. at 479 (citing
“The Fourth Circuit Court of Appeals has not stated a test for determining what constitutes ‘good cause’ or ‘compelling circumstances,‘” but the Advisory Committee Notes to the 1996 Amendments to Rule 43(a) provide some guidance. Humbert v. O‘Malley, Civ. No. WDQ-11-0440, 2015 WL 1256458, at *2 (D. Md. Mar. 17, 2015). They state that “[t]ransmission cannot be justified merely by showing that it is inconvenient for the witness to attend the trial.”
As to Plaintiff‘s request, the Court agrees with Defendant that the timing of the motion seeking to excuse live testimony is troubling, particularly in light of Plaintiff‘s stated reasons for the need for video transmission of the two witnesses’ testimony. Plaintiff fails to assert any special need or unexpected occurrence that favors permitting remote testimony. Instead, Plaintiff asserts only that the cost of travel for the witnesses and circumstances related to their work obligations justifies their remote appearance at trial. But as the Advisory Committee Notes state, “[a] party
Second, the Court is unconvinced that Plaintiffs have shown “good cause in compelling circumstances” as envisioned in Rule 43 with respect to the burden associated with either witnesses’ travel to testify at trial. Dr. Wolff is traveling from Chicago, Illinois, to Baltimore, Maryland. See ECF 91-1, at 2. Dr. Wolff states in his affidavit that “it would not be feasible for [him] to travel to Baltimore, Maryland to testify in person as a result of the disruption travel would pose to [his] obligations at work, and the costs of travel that [he] would incur.” Id. at ¶ 5. However, the Court is not presented with any detail as to what work obligations or specific costs make such
With respect to Mr. Axelrod, this Court does not have an affidavit upon which to assess the circumstances related to his work and travel. And although the Court is sympathetic to Plaintiff‘s assertion that “covering the costs of travel and lodging for Mr. Axelrod in addition to his fees for time spent testifying” present “a significant financial hardship” for Plaintiff,5 this was obviously a risk known to Plaintiff when she secured Mr. Axelrod‘s services as an expert witness. Accordingly, the Court sees no reason to make an exception in this case to the rule that favors live testimony. See Lopez, 748 F. Supp. at 479 (“Although Rule 43 provides some flexibility in accepting remote testimony, it seems obvious that remote transmission is to be the exception
II. Dr. Wolff‘s Evaluation & Plaintiff‘s Disability
Plaintiff next argues in favor of the admissibility of Dr. Wolff‘s November 30, 2017 psychoeducational evaluation of Plaintiff. ECF 91, at 5.7 In support, Plaintiff cites to the Court‘s prior memorandum opinion which held that “the authenticity and admissibility of Dr. Wolff‘s evaluation cannot fairly be disputed by Defendant.” ECF 91, at 5 (quoting ECF 63, at 18 n.4). Plaintiff also argues that the fundamental question of whether Plaintiff is disabled under the Americans with Disabilities Act (“ADA“) is settled by the Court‘s earlier pronouncement, in the context of summary judgment, that “it is clear that Plaintiff‘s conditions substantially impact one or more major life activities, and she is disabled under the meaning of the ADA.” Id. at 7 (quoting ECF 63, at 24). Plaintiff reasons that because “[t]he Court‘s ruling on summary judgment is the law of the case, and applies to trial,” id. at 7 (first citing TFWS, Inc. v. Franchot, 572 F.3d 186, 191 (4th Cir. 2009); and then citing Pitrolo v. Cnty. of Buncombe, N.C., 407 F. App‘x 657, 659 (4th Cir. 2011)), Defendant is foreclosed from challenging the admissibility of the evaluation, id. at 6, and from making “any argument that Plaintiff does not have a disability under the ADA,” id. at 7.
Defendant contends that Plaintiff “misconstrues the Court‘s Summary Judgment Opinion.” ECF 92, at 2. “[C]ontrary to [Plaintiff]‘s assertion in her Motion,” Defendant argues, “this Court did not determine that Dr. Wolff‘s evaluation is admissible for the truth of [Plaintiff]‘s assertion that she has a qualified disability under the ADA or for any other purpose.” Id. at 6. Defendant asserts that it “sought exclusion of Dr. Wolff‘s evaluation on the narrow ground that Dr. Wolff was not identified and disclosed as an expert witness.” Id. Further, Defendant contends that it merely “identified Dr. Wolff‘s evaluation in its motion for summary judgment and attached a copy as an exhibit, giving the Plaintiff the benefit of the doubt as it must in moving for summary judgment.” Id. (citing ECF 36-1). As to Plaintiff‘s second argument that the issue of Plaintiff‘s disability is settled, Defendant asserts that “[i]n its motion for summary judgment, [Defendant] did not seek a ruling on whether Halig has a covered ‘disability,’ but rather for purposes of summary judgment only assumed, arguendo, that she has a covered ‘disability,’ thus reserving that issue for trial if the Court denied [Defendant]‘s motion, which was based on other grounds.” Id. at 6. “Given that the admissibility of Dr. Wolff‘s evaluation is subject to further objection and the Court did not deem it admissible for the truth of [Plaintiff]‘s assertion that she has a qualified disability under the ADA,” Defendant asserts that it can still challenge the admissibility of the evaluation and “the existence of [Plaintiff]‘s alleged disability.” Id. at 7.
1. Dr. Wolff‘s Evaluation
The Court concludes that Defendant may challenge the admissibility of Dr. Wolff‘s evaluation at trial. Although Defendant attached Dr. Wolff‘s evaluation to its own motion for
Suffice to say that it is clear to the Court that Dr. Wolff‘s report is a key piece of evidence in the case as it was submitted to Defendant as justification for the requested accommodation at the heart of the case, and thus will be before the Court at trial for at least that purpose. Further, the report summarizes Dr. Wolff‘s conclusions as to Plaintiff‘s disability, a question of fact that the Court already ruled was not barred by the failure to disclose Dr. Wolff as an expert witness. ECF 63, at 17–18. In making that ruling, however, the only question before the Court was whether to “strike” Dr. Wolff‘s report for purposes of summary judgment. Id. And in denying that motion, the Court simply held that the report was not “testimony” as that word is defined in Black‘s Law Dictionary, was available to both parties, and thus could be reviewed as the Court addressed the pending summary judgment motion. Id. The Court‘s ruling was not intended to foreclose future
2. The Question of Plaintiff‘s Disability
Plaintiff argues that the Court has granted partial summary judgment on the question of whether Plaintiff is disabled within the meaning of the ADA. ECF 91, at 6. Calling this prior ruling the “law of the case,” Plaintiff argues that Defendant should not be permitted to relitigate that issue. Id. at 7. Though cabined to a discussion of the challenge to Dr. Wolff‘s report, Defendant counters that it “can still challenge the existence of Halig‘s alleged disability[.]” ECF 92, at 7. The Court will address Plaintiff‘s motion as one seeking clarity on the question of whether Defendant can challenge the fact of Plaintiff‘s prior diagnosis of “Attention--Deficit/Hyperactivity Disorder (‘ADHD‘), Adjustment Disorder, and learning disorders in math and reading,” ECF 63, at 2, and the fact that these conditions “substantially limit[] one or more [of Plaintiff‘s] major life activities,” id. at 22 (citing
It is undoubtably true that in addressing the cross-motions for summary judgment, the Court concluded Plaintiff “is disabled under the meaning of the ADA.” Id. at 24. However, that determination was based, at least in part, on Dr. Wolff‘s evaluation, the admissibility of which would be subject to further dispute, and the determination was made in the context of a ruling that ultimately denied Plaintiff‘s cross-motion for summary judgment, see id. at 2, 22–24.10 In
To the extent the Court‘s July 1, 2024 decision may have left unanswered the question of whether the fact of Plaintiff‘s disability could be challenged at trial, the Court notes that neither party sought clarification on the issue. The Court also notes that Plaintiff did not seek, and the Court did not explicitly grant, partial summary judgment on that particular element of Plaintiff‘s ADA claim. See ECF 64, at 1 (denying both motions for summary judgment in their entirety). Thus, there is a strong argument that Defendant‘s right to challenge the fact of Plaintiff‘s disability survived the summary judgment stage. On the other hand, despite claiming to concede the point, Defendant raised the issue in response to Plaintiff‘s motion for summary judgment and pointed to facts in support of its position in the record, and the Court rejected the argument in making the decision memorialized in the July 1, 2024 opinion. Regardless, the Court need not wade deeper into this dispute over whether summary judgment was granted as to this element of Plaintiff‘s claim because Defendant has nonetheless waived that issue by failing to include sufficient details as to the contours of any challenge in the joint pretrial order.
Both parties provided a “Statement of Facts and Legal Theories” in the joint pretrial order. See ECF 79, at 1, 7. In Defendant‘s statement of “Legal Theories,” id. at 11, Defendant identified that “[t]o prevail under Title III of the ADA, Plaintiff must show that she: (1) is disabled; (2) was otherwise qualified academically to take the Part III Clinical Skills Examination; and (3) requested a reasonable accommodation that would not fundamentally alter the nature of and purpose of NBEO‘s Part III Clinical Skills Examination.” Id. at 12. Defendant then wrote:
Plaintiff‘s Title III claim fails because her accommodation request was not reasonable or justified because: 1) the requested accommodation was not necessary or justified based on Plaintiff‘s alleged disability; 2) the requested accommodation would have fundamentally altered the necessary nature of the Clinical Skills Examination; and 3) the requested accommodation would have posed a direct threat to the safety of the Standardized Patients.
Id. at 12. Beyond deeming Plaintiff‘s disability as “alleged,” Defendant did not identify with requisite specificity that it was going to challenge Plaintiff‘s claim on the basis that Plaintiff did
Additionally, in Defendant‘s “Summary of Facts Defendant will Prove at Trial,” id. at 7, Defendant included a section titled “Plaintiff‘s Alleged Disability,” id. at 9. In that section, Defendant wrote:
Plaintiff claims that she has ADHD, mood disorder and a learning disability in math and reading. The last time she received any disability-related evaluation or diagnosis was in 2017, when she consulted Dr. Joshua Wolff in connection with her request for an accommodation from the Illinois College of Optometry. Dr. Wolff‘s evaluation does not indicate that he has any specialized knowledge of or experience with Optometry in general, or the Part III Clinical Skills Examination in order to properly recommend an accommodation for the Part III Clinical Skills Examination.
Id. at 9 (emphasis added). Defendant framed its challenge to Dr. Wolff‘s evaluation as relating to Dr. Wolff‘s ability to “properly recommend an accommodation for the Part III Clinical Skills Examination,” not as one alleging that Dr. Wolff was somehow unable to identify Plaintiff‘s disabilities and their impacts on her life. Indeed, this would be a herculean task given that it appears uncontested that Plaintiff sought – and received – accommodations on other parts of the certification exam due to her disabilities, and based solely on Dr. Wolff‘s report. Id. at 9. Accordingly, the Court concludes that Defendant has waived its ability to challenge Plaintiff‘s claim on the basis that she does not have a disability under the ADA.
In making this ruling, the Court notes that it is not preventing Defendant from arguing that “[t]he [CSE] did not require significant reading or math that would support a need for the accommodation requested for Plaintiff‘s alleged disability.” ECF 79, at 12. Indeed, a challenge
III. Issues with the Remedy for an Alleged Violation of the ADA
The pretrial conference and the joint pretrial order have, however, raised a new concern: the remedy for any ADA violation. In the joint pretrial order, the Defendant notes that “the NBEO no longer offers the CSE and has replaced it with an entirely new PEPS Examination,” and argues that the “[t]he Court cannot order NBEO to give Plaintiff additional time on the [CSE] because [it] no longer exists and it is impossible for NBEO to administer the CSE to Plaintiff or any other candidate.” ECF 79, at 14. Further, Defendant argues that “the Court cannot issue an injunction related to the PEPS Examination because Plaintiff has not applied to take the PEPS examination or even requested an accommodation related to the PEPS Examination.” Id.
Though the Court previously addressed this issue in the context of mootness, ECF 63, at 20–23, the issue has not been addressed in the context of what remedy is appropriate if the Court finds that Defendant violated the ADA in refusing to provide Plaintiff with her requested accommodations on the CSE. The Court notes that this issue is not ripe until, if ever, an ADA violation is found and thus does not believe that testimony or witnesses on this point are necessary or appropriate at next week‘s trial. In other words, if the Court finds a violation of the ADA, the question of a remedy may have to wait until after a subsequent proceeding that digs deeper into the PEPS examination, the reasons for the change to it (from the CSE), and the practicability of recreating the CSE.
IV. Conclusion
For the foregoing reasons, Plaintiff‘s Motion is denied as it relates to remote testimony and granted as it relates to challenging the fact that Plaintiff has a disability as defined under the ADA.
Dated: September 17, 2025
/s/
Brendan A. Hurson
United States District Judge