Recently, the Assessment Review Board began a hearing in the above referenced matter with a determination that there was an appearance of bias among all of the parties major expert witnesses. The Board determined that the experts involved would not be qualified as experts. The decision was made prior to the hearing of any evidence and prior to any voir dire being conducted, furthermore there was no suggestion from counsel that there would be a qualification issue on the aspect of impartiality. The Board made the determination at the outset of the hearing, effectively putting an end to the hearing before it could begin. All three parties have joined in a request for review to the Chair of the Board which can only be heard following the release of written reasons for the decision.
This unilateral action by the Board calls into question the power of the Board to act unilaterally in determining procedural matters. This decision also puts the issue of the expert witness into the spotlight. Anyone in the industry has been keenly aware that this issue has been on the verge for some time. Now this issue will need to be resolved in order to give parties to Assessment Review Board proceedings some comfort that they will not get to the hearing of a matter, after substantial expense, and find that their expert witness is not going to be qualified due to reasons that have existed between all parties for some time.
Whatever happens parties to ARB hearings will need to start making some difficult decisions with respect to expert witnesses as the issue is clearly at the fore in the minds of Board members. The decision of the Board is now subject to review both for its substantive reasons as well as the procedural matters that it raises.
More to come…