IN THE UNITED STATES DISTRICT COURT FOR THE 

MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

OWEN J. ROGAL, D.D.S., P.C., 

 Plaintiff, 

v. 

SKILSTAF, INC., 

 Defendant. 

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CIVIL ACTION NO. 

3:06-cv-00728-MHT

DEFENDANT’S WITNESS AND EXHIBIT LISTS

 Defendant Skilstaf, Inc. (“Skilstaf”) hereby provides Plaintiff with the 

following Witness and Exhibit Lists: 

WITNESS LIST

1. Skilstaf does not expect to present any witnesses: 

(a) Plaintiff claims that it is entitled to medical coverage under the 

Skilstaf Group Health Plan (the “Plan”) in connection with radio-frequency 

treatments it rendered to Dianna Berry from January 2005 to June 2005. See

Compl. ¶¶ 1-21. The Plan is governed by the Employee Retirement Income 

Security Act of 1974, as amended (“ERISA”), 29 U.S.C. §§ 1001-1461. SkilstafCase 3:06-cv-00728-MHT-WC Document 64 Filed 07/27/2007 Page 1 of 6
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00003.1 The Plan vests full discretionary authority in the Plan Administrator – 

Risk Reduction, Inc. (“RRI”) – to interpret the Plan and to apply the Plan’s claim 

review procedures. Skilstaf-00058, Skilstaf-00060. RRI was the Plan 

Administrator that handled, and denied, Plaintiff’s claim for coverage under the 

Plan. See Skilstaf-00060. Skilstaf, designated as the Plan Sponsor, funds the Plan 

based upon its determination of the amounts necessary to timely pay Plan benefits 

and expenses. Id. 

(b) The arbitrary and capricious standard of review applies in this case 

because discretionary authority to interpret the terms of the Plan is delegated to the 

Plan Administrator, RRI, and not to Skilstaf (who is responsible for funding the 

Plan). Skilstaf-00058, Skilstaf-00060. Under the arbitrary and capricious standard 

of review, the scope of the Court’s review is limited to the evidence in the 

administrative record. See Buckley v. Metro. Life, 115 F.3d 936, 941 (11th Cir. 

1997) (holding that under the arbitrary and capricious standard, the court is to 

review the facts known to the administrator at the time its decision was made); Lee 

v. Blue Cross/Blue Shield of Ala., 10 F.3d 1547, 1550 (11th Cir. 1994) (finding, 

under the arbitrary and capricious standard, that the reviewing court’s inquiry is 

limited to the evidence that was available when the fiduciary made its final 

 

1

 The Administrative Record was served along with Defendant’s Initial Disclosures on or about 

December 6, 2006. For ease of reference, pages within the Administrative Record will be 

referred to herein by their bates-labeled page numbers only, such as “Skilstaf-00125.” 

Case 3:06-cv-00728-MHT-WC Document 64 Filed 07/27/2007 Page 2 of 6
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decision); Jett v. Blue Cross and Blue Shield of Ala., Inc., 890 F.2d 1137, 1139 

(11th Cir. 1989) (“[T]he function of the court is to determine whether there was 

reasonable basis for the decision, based upon the facts as known to the 

administrator at the time the decision was made.”). 

(c) Accordingly, the Court is to decide this action on the administrative 

record in a bench trial without any need for any witnesses. 

2. Subject to and without waiving its position that this case should be 

decided on the administrative record in a bench trial without any need for any 

witnesses, Skilstaf states that, if Plaintiff is allowed to present evidence outside the 

administrative record, it may present one or more of the following witnesses: 

(a) Dennis Berry 

(b) Dianna Berry 

(c) Dr. Stuart Kauffman 

(d) Dr. Paul Palmerio 

(e) Dr. Owen Rogal 

(f) Dr. Randy Weiss 

(g) Kim deOliveira 

(h) Marsha M. Silberstein, M.D. 

(i) Wallis Haynes, Esq. 

(j) Robert Johnson 

Case 3:06-cv-00728-MHT-WC Document 64 Filed 07/27/2007 Page 3 of 6
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(k) Belinda Cotney 

(l) Natalie Morton 

(m) Tara DeAndrea 

(n) Veronica Everett 

3. If Plaintiff is allowed to present evidence outside the administrative 

record, Skilstaf reserves the right to supplement its witness list and to respond with 

witnesses that it cannot identify, not now knowing what evidence Plaintiff might 

be allowed to offer. 

EXHIBIT LIST

1. The administrative record for Plaintiff’s claim (Skilstaf-00001 – 

Skilstaf-02129). 

2. Documentation supporting Skilstaf’s claim for $71,911.53 in monies 

that it alleges were mistakenly or fraudulently caused to be paid to Plaintiff in 

connection with its treatment of Dianna Berry (Skilstaf-02130 – Skilstaf-02138). 

Skilstaf produced this documentation along with its Initial Disclosures on or about 

December 6, 2006. 

 3. Any documents needed for rebuttal of Plaintiff’s witnesses or exhibits. 

Case 3:06-cv-00728-MHT-WC Document 64 Filed 07/27/2007 Page 4 of 6
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Respectfully Submitted, 

 s/Charles A. Stewart III 

Charles A. Stewart III (STE067) 

Bradley Arant Rose & White LLP

The Alabama Center for Commerce 

401 Adams Avenue, Suite 780 

Montgomery, AL 36104 

Telephone: (334) 956-7700 

Facsimile: (334) 956-7701 

cstewart@bradleyarant.com

s/Amelia T. Driscoll 

Amelia T. Driscoll (DRI016) 

Bradley Arant Rose & White LLP

1819 Fifth Avenue North 

Birmingham, AL 35203-2104 

Telephone: (205) 521-8000 

Facsimile: (205) 521-8800 

adriscoll@bradleyarant.com

Attorneys for Defendant 

Skilstaf, Inc. 

Case 3:06-cv-00728-MHT-WC Document 64 Filed 07/27/2007 Page 5 of 6
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CERTIFICATE OF SERVICE

I hereby certify that on July 27, 2007, I electronically filed the foregoing 

with the Clerk of the Court using the CM/ECF system, which will send notification 

of such filing to the following: 

Robert E. Cole 

437 Chestnut Street, Suite 218 

Philadelphia, PA 19106 

Beth A. Friel 

Jeanne L. Bakker 

Mongtomery, McCracken, Walker & Rhoads 

123 South Broad Street 

Philadelphia, PA 19109 

and I hereby certify that I have mailed by U. S. Postal Service the document to the 

following non-CM/ECF participants: None. 

/s/ Amelia T. Driscoll 

Case 3:06-cv-00728-MHT-WC Document 64 Filed 07/27/2007 Page 6 of 6