Evidentiary Hearings

The formal evidentiary hearings consumed eleven-and-one-half days, beginning November 6, and ending December 14, 2001. Concurrent opening briefs (O.B.) were filed on February 7 and reply briefs (R.B.) on Feb 25, 2002, at which time the matter was submitted.

A disturbing trend occurred during the hearing. Blue Line's witnesses were constantly being juggled from what would be their normal order of appearance. In particular, Dr. Stone, the project manager for Blue Line, appeared to be used as a "fill-in" for other witnesses who had obligations that inhibited their appearance at the expected time. While this rearranging was always done with the unanimous concurrence of the parties it created a disjointed record. The ALJ commented about this and the difficulty it would create for his review process, as well as for ours. (Tr 1726-28). While some accommodation should be given when there are multiple witnesses, we caution the parties that appearance at our hearings is as important as are other commitments, and that the indulgence exhibited by the ALJ should not be expected in the future.