Jain v. Ohio State Medical Board, Franklin Cty. C. P. Ct. No. 09CVF07-11053

Holding:
It is not necessary to include in the record all documents that may have a connection with the appeal.  The court can admit additional evidence in the record only if it is newly discovered and could not with reasonable diligence have been ascertained prior to the agency hearing.

Summary:

In an administrative appeal of a decision of the Ohio State Medical Board, Appellant filed a motion to admit additional evidence that was not included in the record of the proceedings filed by the Board.

Appellant sought to admit certain documents that were related to the proceeding, including an audio tape of the Board meeting in which the Board deliberated on the case, an affidavit and memorandum written by a member of the Board’s staff; and an affidavit of a private attorney.  The Board stated that the documents were not part of the record of the proceedings, and should not be admitted as additional evidence.

The court held that the mere fact that materials might have some connection with an appeal is insufficient to include them in the record.  As to whether the additional documents could be admitted, the court held that it had no discretion to admit additional evidence unless the evidence is “newly discovered” and “could not with reasonable diligence have been ascertained prior to the agency hearing.”  The court held that the items that did not exist at the time of the hearing could not constitute newly discovered evidence, as they were newly created rather than newly discovered.

As to the audio tape from the Board meeting, the court held that the Board’s official minutes were “a sufficiently precise history of that proceeding to afford adequate review on appeal,” and that the failure to include a tape or stenographic transcript of the meeting did not render the record incomplete.  The court further held that conjecture regarding possible errors and omissions in the minutes did not demonstrate that introduction of the tape was necessary.

The court further dismissed the appeal for failure to exhaust administrative remedies due to the appellant’s failure to request a hearing before the Board.  (AAG Karen Unver)