COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Student v. Topsfield Public Schools and Masconomet Regional School District
BSEA #25-10694
RULING
ON TOPSFIELD PUBLIC SCHOOLS’ AND MASCONOMET REGIONAL SCHOOL DISTRICT’S ORAL MOTIONS TO PRESENT REBUTTAL TESTIMONY
AND ON
PARENTS’ MOTION TO REOPEN CASE-IN-CHIEF
On March 6, 2026, Topsfield Public Schools (Topsfield), and Masconomet Regional School District (MASCO) (together, the Districts), along with Parents, participated in the third day of a five-day hearing in the above-referenced matter, addressing the following issues:
- Whether the IEP for Student’s sixth grade year with placement at Topsfield provided Student with a FAPE in the LRE? If the answer is negative, then whether Topsfield must provide the student with compensatory services in the form of a year at Landmark School, including transportation and summer programming?
- Whether the IEP for Student’s seventh grade year with placement proposed at MASCO provided Student with a FAPE in the LRE? If the answer is negative, then whether MASCO must reimburse Parents for Landmark School, including transportation and summer programming?
Following the testimony of Holly Cole on behalf of Parents and the close of Parents’ case-in-chief, the Districts requested to present rebuttal evidence to Ms. Cole’s testimony (Motions to Present Rebuttal Testimony). Said Motions were allowed on the record, and the rebuttal testimony was scheduled to occur on May 1 and/or May 18, 2026 (the final scheduled days of Hearing).
On March 20, 2026, Parents requested that the Hearing Officer limit the scope of the Districts’ planned rebuttal testimony and that they be allowed to reopen their case in chief to allow for testimony of another witness, Cynthia DeAngelis, M.Ed., who would address the expected area of focus of the rebuttal witnesses: namely, Ms. Cole’s lack of direct observation (Motion to Reopen Case-in-Chief). According to Parents, although they did not oppose rebuttal testimony, they requested that the Districts be required to provide advance written offers of proof for each rebuttal witness specifying the portions of Ms. Cole’s testimony being rebutted, the substance of the rebuttal, and the basis of the witness’s knowledge. Parents argued this was necessary to ensure rebuttal remained narrowly focused, avoided duplication, and promoted efficiency and fairness. They also requested that testimony be strictly limited to the disclosed scope and that they be allowed meaningful opportunity to respond and for cross-examination. As such, Parents requested to reopen their case-in-chief to allow Ms. DeAngelis’s testimony to occur on May 1, 2026 (the next scheduled hearing day) before the Districts begin their cases. Parents argued that Ms. DeAngelis’s testimony is now essential because she personally observed Student in all relevant educational settings and her pre-hearing observation notes are already in evidence, providing critical support for Ms. Cole’s analysis. Parents contended that allowing her testimony would ensure a complete and fair record, particularly regarding direct observation. Parents also reserved their right to present their own rebuttal witnesses and requested that the same offer-of-proof requirements apply to both parties.
On March 26, 2026, Topsfield Public Schools objected to Ms. DeAngelis’s testimony on the grounds that, at the start of the hearing, Parents clarified that Ms. DeAngelis would be serving as a "second seat" to Ms. Marie Nazzaro, Parents’ Advocate, and therefore would not be called as a witness. Parents’ claim that they needed to call Ms. DeAngelis to rebut the testimony of Topsfield’s rebuttal witnesses to Ms. Cole's testimony was unpersuasive as it was “unclear [how] the Parents know now that they know Ms. DeAngelis as the rebuttal testimony has not yet occurred.” In addition, Ms. DeAngelis's testimony was now tainted because she was self-admittedly serving in the role of an advocate, not an impartial observer, or an expert. At the very least, any consideration of whether to allow Ms. DeAngelis to testify should be deferred until after all rebuttal witnesses have testified. Relative to the Parents’ pre-emptive request for their own rebuttal witnesses to rebut the yet-to-be-delivered rebuttal testimony of Topsfield witnesses, this request was premature.
On March 26, 2026, Parents replied to Topsfield’s opposition, arguing that Ms. DeAngelis’s testimony was essential to explain observation notes already admitted into evidence. Parents further argued that Topsfield was improperly attempting to use rebuttal to relitigate its case-in-chief.
On March 27, 2026, MASCO opposed Parents’ request to reopen their case and to limit the scope of rebuttal testimony. MASCO argued it should be given broad latitude in presenting rebuttal evidence because, as a defending party without the burden of proof, it was required to have its own witnesses testify during Parents’ case-in-chief, before hearing all of Parents’ evidence, including Ms. Cole’s testimony. MASCO contended this sequencing justifies a wider scope of rebuttal to address unexpected aspects of Cole’s testimony, including her characterization of MASCO’s programs and her statements about communications with staff. MASCO indicated that it aimed to rebut specific statements Ms. Cole made under oath. MASCO also objected to reopening Parents’ case to allow Ms. DeAngelis to testify, arguing that this would improperly allow Parents to supplement their case-in-chief after it had already been closed.
On March 27, 2026, Parents responded to MASCO’s opposition, arguing that its request for broad “latitude” in rebuttal contradicted the Hearing Officer’s clear standard limiting rebuttal to unexpected, discrete issues. Parents rejected MASCO’s claim that the order of witnesses justified expanded rebuttal, noting that Parents had the right to present their case as they chose, that no objections were raised at the time, and that scheduling changes were due to practical constraints. Parents further argued that Ms. Cole’s testimony was not unexpected but based on the District’s own inconsistent descriptions in the IEP and communications. In addition, MASCO’s objection to Ms. DeAngelis’s testimony was unfounded because her observation notes were already in evidence, and her testimony was necessary for fairness.
Because neither party requested a hearing on the Motions, and neither testimony nor oral argument would advance the Hearing Officer's understanding of the issues involved, this Ruling is issued without a hearing, pursuant to Bureau of Special Education Appeals Hearing Rule VI(D).
LEGAL STANDARDS
REBUTTAL TESTIMONY
A trial judge possesses broad discretion in deciding whether to permit the presentation of rebuttal evidence.[1] A party does not have a right to present rebuttal evidence that merely bolsters the party's affirmative case.[2] There are circumstances, however, in which a party may present rebuttal evidence as matter of right, as when seeking to refute evidence presented by an opposing party.[3] These circumstances include “the right to introduce ... competent evidence to rebut evidence of new facts appearing in the testimony of witnesses called by the opponent.”[4] “To the extent that [the rebuttal evidence goes] to impeachment (as opposed to substantive issues in the case), judges have discretion to permit impeachment on collateral matters by extrinsic evidence offered in rebuttal.”[5]
However, “[t]here is no right to rebut evidence that was not unanticipated, or to present rebuttal evidence that merely supports the proponent's affirmative case.”[6]
REOPENING CASE-IN-CHIEF
Pursuant to 801 CMR 1.01(7)(k), any time after the close of a hearing and prior to a decision being rendered, a Party may move to reopen the record if there is new evidence to be introduced. New evidence consists of newly discovered evidence which by due diligence could not have been discovered at the time of the hearing by the Party seeking to offer it. A motion to reopen shall describe the new evidence which the Party wishes to introduce.”[7] Among the material factors which should be assessed are “whether: (1) the evidence sought to be introduced is especially important and probative; (2) the moving party's explanation for failing to introduce the evidence earlier is bona fide; and (3) reopening will cause no undue prejudice to the nonmoving party.”[8] Deciders of fact have discretion in refusing to reopen a case where the proffered “new” evidence is insufficiently probative to offset the procedural disruption caused by reopening.[9] “[Deciders of fact] likewise should consider whether the moving party offered a bona fide explanation for failing to introduce the evidence before it finally rested its case. Moreover, the courts recognize that it may amount to an abuse of discretion for a trial court to decline to reopen in circumstances where the movant has demonstrated ‘reasonably genuine surprise.’”[10] The degree to which an order allowing reopening would prejudice the opposing party should also be considered.[11] For instance, the introduction of readily obtainable documentary evidence that would entail minimal delay is less likely to prejudice the opposing party.[12]
APPLICATION OF LEGAL STANDARDS
I note at the outset that where neither Topsfield nor MASCO has yet presented its case-in-chief, the proper mechanism for responding to Ms. Cole’s expert testimony is not rebuttal, but rather the presentation of contrary evidence during the Districts’ cases-in-chief. However, the procedural posture of this matter is atypical. Here, the Districts were permitted, without objection, to question certain of their own witnesses during Parents’ case-in-chief, prior to the close of Parents’ evidence (with the intention that the Districts’ examination of such witnesses would constitute the entirety of that witness’s testimony). In these circumstances, I find that it is appropriate to allow “rebuttal” testimony solely for the limited purpose of refuting specific, new, or unanticipated matters, and inconsistencies in the record raised during Ms. Cole’s testimony, including assertions made in her report on which she elaborated at hearing. The Districts’ prior witnesses who are sought to be recalled for rebuttal did not have the benefit of Ms. Cole’s testimony at the time they testified, and since her report had not been disclosed to either Topsfield’s or Masconomet’s IEP Teams, it had not been subject to prior review, examination, or response by the Districts.
With respect to Parents’ Motion to Reopen Case-in-Chief, because neither Topsfield nor MASCO has yet presented its case-in-chief, the request is premature. The need for additional testimony in response to the Districts’ evidence, if any, cannot be meaningfully assessed until that evidence is presented. While Ms. DeAngelis’s notes are already in evidence, Parents made a strategic decision to designate her as a co-Advocate. Nevertheless, in the interest of fairness and a complete record, I defer ruling on Parents’ Motion to Reopen Case-in-Chief at this time. The Motion may be reconsidered, if appropriate, following the presentation of the Districts’ cases-in-chief, at which point the necessity, probative value, and potential prejudice of such testimony can be more fully evaluated.
ORDER
Accordingly, Topsfield’s and MASCO’s Motions to Present Rebuttal Testimony are ALLOWED, with the limitations set forth above. Parents’ Motion to Reopen Case-in-Chief is DENIED at this time, without prejudice, subject to renewal following the Districts’ presentation of their cases-in-chief.
So Ordered by the Hearing Officer,
/s/ Alina Kantor Nir
Alina Kantor Nir
Dated: March 31, 2026
Footnotes
[1] See Drake v. Goodman, 386 Mass. 88, 92 (1982).
[2] Id. at 92.
[3] Id.
[4] Teller v. Schepens, 25 Mass. App. Ct. 346, 350 (1988).
[5] Com. v. Pagan, 440 Mass. 84, 90(2003).
[6] Oliveira v. Binder, 73 Mass. App. Ct. 1113, 898 N.E.2d 889 (2008); see Urb. Inv. & Dev. Co. v. Turner Const. Co., 35 Mass. App. Ct. 100, 104 (1993) (where “the defendants' expert testimony did not amount to new or unanticipated evidence presented for the first time at trial[, t]he judge acted within his substantial discretion in refusing to allow the rebuttal testimony”).
[7] See Dunlea v. R.D.A. Realty Co., 301 Mass. 505, 506 (1938) (“The trial judge in his discretion could properly admit, after the defendant had rested, testimony supporting the plaintiff's contentions which might have been introduced in the plaintiff's case in chief”).
[8] Rivera-Flores v. Puerto Rico Tel. Co., 64 F.3d 742, 746 (1st Cir. 1995).
[9] Id. at 746–47.
[10] Id.
[11] Id. at 749.
[12] See Capital Marine Supply, Inc. v. M/V Roland Thomas, 719 F.2d 104, 107 (5th Cir.1983) (finding no abuse in granting motion to reopen where the testimony can be made available without undue delay).