A recent decision by Administrative Law Judge John Herke provides guidance when a claimant attempts to submit deposition or unsworn testimony in lieu of testifying live at Formal Hearing. With DBA claimants continuing to allege claims related to delayed-onset psychological or pulmonary conditions, Defense Base Act litigation remains an evolving area of law.
Galloway’s New Orleans based Defense Base Act team examines how this recent decision may impact future claims and provides key considerations for defense strategies when due process and credibility issues arise.
Voucher: Claimant’s Efforts to Waive Formal Hearing Attendance
In Tasholli v. KBR Govt. Oper., 2023-LDA-01501 (February 5, 2025), the claimant, a native of Kosovo, stated in his pre-hearing filings that he did not intend to testify live at the Formal Hearing, but instead requested that his discovery deposition be entered into the record as an exhibit. The claimant requested that his deposition was admissible as an exhibit on six grounds: (1) the employer waived any objections to the format of recording of his deposition; (2) the deposition was taken before the issuance of Chief Judge Henley’s Order regarding foreign claimant testimony; (3) the claimant resides more than 100 miles from the place of Formal Hearing (referring to Federal Rule of Civil Procedure 32); (4) the employer had the opportunity to cross-examine him at his deposition; (5) the ALJ has discretion to conduct a Formal Hearing “in such manner as to best ascertain the rights of the parties;” and (6) the Federal Regulations require the admissibility of the deposition. In response, the employer/carrier objected to the claimant’s request that he be allowed to rely on his discovery deposition in lieu of live testimony.
Security: The ALJ Sustains Employer’s Objection
In his Order, Judge Herke sustained the employer’s objection to the introduction of the deposition in lieu of the claimant’s live testimony. Judge Herke found the claimant did not establish that he met any of the criteria for entering his deposition into evidence in lieu of his live testimony, including an analysis of Section 924. The ALJ reasoned that the applicable regulations permitting receipt of relevant and material documentary evidence are not an “open-ended ticket to bypassing either the black letter law of the Act itself or the applicable regulations as to testimony simply to avoid cumbersome oath requirements for the development of live testimony.”
Further, Judge Herke found that many of the claimant’ arguments to rely solely on his deposition were “only tangentially related” to the issue of whether his deposition should be admitted in lieu of requiring his live testimony.
- No Waiver of Objections – The law cited by the claimant in support of this argument pertain to the taking of a deposition, and not the admissibility of the deposition.
- The Chief ALJ’s Order – The timing of the Chief ALJ’s Order is irrelevant since many ALJs required parties to comply with a foreign country’s testimonial oath laws before the issuance of the Chief ALJ’s Order. Also, the Notice of District Office Assignment and Notice of Hearing put the parties on notice of their obligation to comply with any applicable foreign oath requirements.
- The claimant is unavailable for Formal Hearing – This argument ignored the rule that provides that testimony takes place where the witness is located.
- Prior Cross Examination – The claimant reserved questions for the Formal Hearing, and there is no discussion of the agreement to use the deposition for all purposes. Absent any direct examination, there cannot be a cross examination.
- ALJ’s Discretion to Admit – There are questions of credibility of witnesses that may be better determined by seeing and hearing live testimony.
- ALJ’s Requirement to Admit – The regulations require that all persons shall attend the hearing, and the best evidence of the claimant’s perspective is his live testimony. Also, claimant’s deposition is not sworn testimony, and his deposition was conducted more than 4 years ago.
Judge Herke also determined that the claimant’s deposition was taken over four years ago. As a result, the employer had the right to inquire about the claimant’s current medical and financial situation, as well as any substantial events that have transpired following his deposition. By requiring the claimant to testify live, employer’s due process rights were protected, and the claimant’s up-to-date testimony about his condition was preserved.
[Claimant’s testimony] is absolutely essential to the adjudication of his DBA litigation. With that recognition, it cannot be overemphasized that Claimant – of his own volition – filed his claim seeking benefits under U.S. law. In doing so, he agreed to have his claim adjudicated in accordance with the DBA, its accompanying regulations, and the general rules, procedures, and practices encountered in the American administrative benefits process. This involves providing all parties an opportunity to be heard in a meaningful manner and at a meaningful time, including the ability to present their respective cases by submitting evidence on the relevant issues, rebuttal evidence, and cross-examining witnesses.
Consequently, the employer’s objection was sustained, and the claimant was given the option to testify at Formal Hearing. Should the claimant choose to testify, then Judge Herke found that the discovery deposition could be introduced if necessary to show that the claimant made statements in his deposition that are inconsistent with his trial testimony.
Will Call: Claimant’s Duty to Attend the Formal Hearing
Under the regulations, “all hearings shall be attended by the parties or their representatives and such other persons as the administrative law judge deems necessary and proper.” 20 C.F.R. 702.338. However, the parties may jointly agree to submit their respective positions for a decision based solely on the written record, and all (or part) of a deposition may be used at a hearing (1) if there is no objection and (2) to the extent the deposition would be admissible under the applicable rules of evidence as if the deponent were present and testifying. 29 C.F.R. 18.70(d); 29 C.F.R. 18.55.
Generally, a discovery deposition is not automatically admissible as evidence at Formal Hearing in lieu of live testimony unless upon the agreement of the parties and waiver of any applicable objections. However, a discovery deposition may be admissible to impeach any inconsistencies with live testimony.
Judge Herke’s Order emphasizes the requirement that a claimant provide live, sworn, and current testimony and be subject to cross examination in an effort to preserve all parties’ due process rights. This includes affording all parties an opportunity to be heard, including the cross-examination of witnesses and the submission of rebuttal evidence. The Order also stresses that a claimant cannot substitute a discovery deposition for live testimony if the employer/carrier maintain an objection thereto. Moreover, despite the burdensome foreign oaths requirements, claimants who are foreign nationals may not rely on a deposition that is insufficient under the applicable regulations in order to avoid presenting live testimony or an acceptable substitute. Judge Herke allowed the claimant additional time to request the issuance of a letter rogatory.
In determining whether live testimony at Formal Hearing is necessary, employers and carriers should consider whether the claimant’s expected testimony presents any due process or credibility issues. Should the claimant’s credibility be at issue, then it may be helpful to present the claimant live so that the ALJ may observe the claimant and examine credibility directly. Additionally, the discovery deposition may not reflect the claimant’s current medical and financial condition, and live testimony may better reflect the claimant’s current condition (i.e. a return to work and ability to earn wages). Accordingly, requiring live testimony may ensure the record includes current and reliable evidence. Furthermore, live testimony may be necessary if the discovery deposition is not valid sworn testimony and is not in compliance with a foreign country’s oath laws.
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