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 OBJECTION TO 

PLAINTIFF’S WITNESS AND EXHIBIT LISTS

Defendant Skilstaf, Inc. (“Skilstaf”) hereby objects to Plaintiff’s Witnesses 

and Exhibits as follows: 

 1. 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. Skilstaf00003.1

 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 

 

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 66 Filed 08/10/2007 Page 1 of 4
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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. The arbitrary and capricious standard of review, with full 

deference, 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. 

“[W]here [a] plan affords the administrator discretion,” the “administrator’s 

fact-based determinations” cannot “be disturbed if” they were “reasonable based 

on the information known to the administrator at the time the decision was 

rendered.” Paramore v. Delta Airlines, Inc., 129 F.3d 1446, 1451 (11th Cir. 1997). 

Accordingly, and because “[t]he function of the court is to determine whether there 

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

[decision maker] at the time the decision was made[,]” a court is to limit its scope 

of review to the administrative record that was before the decision maker at the 

time the decision maker denied or terminated the claimant’s benefits. Jett v. Blue 

Cross & Blue Shield of Ala., 890 F.2d 1137, 1139 (11th Cir. 1989); Paramore, 129 

F.3d at 1451. Therefore, to determine the propriety of RRI’s decision that Plaintiff 

was not entitled to medical coverage under the Plan in connection with radioCase 3:06-cv-00728-MHT-WC Document 66 Filed 08/10/2007 Page 2 of 4
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frequency treatments it rendered to Dianna Berry from January 2005 to June 2005, 

this Court’s scope of review is limited to the information that was available to RRI 

when it made its decision. 

 2. Except to the extent that document custodians might be necessary to 

establish what comprised the administrative record available to RRI, Skilstaf 

objects to all witnesses listed by Plaintiff. As discussed above, Plaintiff’s 

witnesses would not have admissible evidence to offer the Court. 

 3. Except to the extent that documents are part of the administrative 

record, Skilstaf objects to all exhibits listed by Plaintiff. The administrative record, 

which Skilstaf produced to Plaintiff along with its Initial Disclosures, consists of 

only those documents bates-labeled Skilstaf-00001 through Skilstaf-02184. For 

the reasons outlined above, Plaintiff’s other exhibits would not be admissible 

evidence. 

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

Case 3:06-cv-00728-MHT-WC Document 66 Filed 08/10/2007 Page 3 of 4
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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. 

CERTIFICATE OF SERVICE

I hereby certify that on August 10, 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 

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