UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

AMY CHAVEZ, 

 Plaintiff 

Vs. No. 09-cv-12336 

 Judge Sean F. Cox 

WATERFORD SCHOOL DISTRICT, Mag. Judge Mona K. Majzoub 

 Defendant 

_____________________________________________________________________________/ 

ALYSON OLIVER P55020 MICHAEL D. WEAVER P43985 

Kresch Oliver, PLLC Plunkett Cooney 

Attorneys for Plaintiffs Attorney for Defendant

24100 Southfield Road 38505 Woodward Avenue 

Suite 305 Suite 2000 

Southfield, MI 48075 Bloomfield Hills, MI 48034 

(248)327-6556 (248)901-4025 

aoliver@krescholiver.com mweaver@plunkettcooney.com 

_____________________________________________________________________________/ 

PLAINTIFF’S MOTION FOR LEAVE TO AMEND WITNESS LIST

 NOW COMES PLAINTIFF, AMY CHAVEZ, by and through her attorneys KRESCH 

OLIVER PLLC, and in support of her motion for leave to amend witness list hereby states as 

follows: 

1. Plaintiff seeks to amend the witness list. 

2. Plaintiff has good cause for the amendments. 

3. The amendments will not prejudice Defendant. 

4. Plaintiff wishes to add expert witnesses to the witness list: 

Case 2:09-cv-12336-SFC-MKM ECF No. 42, PageID.758 Filed 07/23/10 Page 1 of 16
a. Gary L. Talbot is an expert in the area of the American with Disabilities 

Act. 

b. William King is an expert in the field of economics. 

5. Plaintiff wishes to clarify the witness list as it relates to the general provision of 

“all Plaintiff’s treating or attending physicians” as currently set forth in paragraph 

24 of the Witness list to specifically list the physicians in addition to the general 

provisions. 

6. Plaintiff wishes to clarify the witness list as it relates to the general provision of 

“any or all of Defendant’s personnel” as currently set forth in paragraph 25 of the 

Witness List to specifically list the personnel in addition to the general provisions. 

7. Plaintiff is still within the timeline provided by the Federal Rules of Civil 

Procedure for disclosing an expert witness. 

WHEREFORE, AMY CHAVEZ, by and through her attorneys KRESCH OLIVER PLLC, prays 

that this Honorable Court grant her Motion for Leave To Amend Witness List. 

 Respectfully submitted, 

Dated: July 14, 2010 /s/Alyson Oliver

 KRESCH OLIVER PLLC 

 BY: Alyson Oliver P55020 

 Attorney for Plaintiff 

 Amy Chavez 

 24100 Southfield Road, #305 

 Southfield, MI 48075 

 248-327-6556 

 aoliver@krescholiver.com 

 

Case 2:09-cv-12336-SFC-MKM ECF No. 42, PageID.759 Filed 07/23/10 Page 2 of 16
i 

BRIEF

Table of Contents

Table of Contents ............................................................................................................................. i 

Index of Authorities ........................................................................................................................ ii

Statement of Facts ............................................................................................................................1 

Argument .........................................................................................................................................3 

Conclusion .......................................................................................................................................5 

Proposed Order Granting Amendments ...........................................................................................6 

Denial of Long Term Disability Benefits .......................................................................... Exhibit A 

Proposed Amended Witness and Exhibit Lists .................................................................. Exhibit B 

Gary L. Talbot’s Curriculum Vitae .................................................................................... Exhibit C 

William King’s Curriculum Vitae ..................................................................................... Exhibit D 

Plaintiff’s Initial Disclosures ............................................................................................. Exhibit E

Case 2:09-cv-12336-SFC-MKM ECF No. 42, PageID.760 Filed 07/23/10 Page 3 of 16
ii 

Index of Authorities 

CASES 

Bonin v. Chadron Cmty. Hosp., 

163 F.R.D. 565 (D.Nev. 1995) ............................................................................................4 

Inge v. Rock Financial Corp., 

281 F.3d 613, 625 (6th Cir. 2002) .......................................................................................3 

Bradford v. Dana Corp., 

249 F.3d 807, 809 (8th Cir. 2001) .......................................................................................3 

Hinton v. Patnuade, 

162 F.R.D. 435,439 (N.D.N.Y 1995) ..................................................................................4 

Inge v. Rock Financial Corp., 

281 F.3d 613, 625 (6th Cir. 2002) .......................................................................................3 

McNerney v. Archer Daniels Midland Co., 

164 F.R.D. 584, 587 (W.D.N.Y. 1995) ...............................................................................4 

River City Capital, L.P. v. Board of County Com'rs, Clermont County, Ohio, 

491 F.3d 301 (6th Cir. 2007). .............................................................................................4

STATUTES 

F.R.C.P. 16 .......................................................................................................................................3 

F.R.C.P. 26 ....................................................................................................................................3,4 

F.R.C.P. 37 .......................................................................................................................................3

Case 2:09-cv-12336-SFC-MKM ECF No. 42, PageID.761 Filed 07/23/10 Page 4 of 16
1 

STATEMENT OF FACTS

Witness Lists were due and filed in this case on February 8, 2010. At that time, 

discovery was still open and dispositive motions had not been filed or ruled upon. Around May, 

2010 Plaintiff received documents from Defendant’s long term disability insurance provider that 

Plaintiff’s request for long term disability benefits had been denied. Specifically of note, the 

denial states unequivocally that Plaintiff could perform her job functions with reasonable 

accommodations. (Exhibit A). Immediately upon receipt of these documents the documents 

were shared with opposing counsel. The content of same has been discussed in the oral 

argument for summary judgment and at case evaluation by Defendant’s counsel. Plaintiff seeks 

leave to amend the witness and exhibit list to include witnesses and exhibits relative to the denial 

of long term disability benefits. Attached as Exhibit B is the proposed amended witness and 

exhibit lists with the additions italicized for convenience. 

Since receiving the opinion denying Defendant’s summary judgment motion, reviewing 

the motion for reconsideration that Defendant has filed and that remains pending, reviewing the 

case evaluation summary filed by Defendant, attending the case evaluation and preparing the 

case for trial, the undersigned has consulted with two experts whose testimony is necessary for 

the proper presentation of this matter. Gary L. Talbot is an expert in the area of the American 

with Disabilities Act who has years of experience in and can proffer opinions regarding the 

qualification of an individual as disabled, reasonableness of accommodations requested under the 

Act, and duties of employers in meeting the requested accommodations. He has received a 

presidential appointment to the U.S. Access Board for two terms. Mr. Talbot’s curriculum vitae 

is attached as Exhibit C, and his information added to Exhibit B. Additionally, William King is a 

necessary expert in the field of economics. His testimony will aid the jury in determining 

Case 2:09-cv-12336-SFC-MKM ECF No. 42, PageID.762 Filed 07/23/10 Page 5 of 16
2 

financial issues such as back pay, front pay, pension benefits, reduction of other benefits to cash 

value and reduction of future benefits to cash value. Mr. King’s curriculum vitae is attached 

here as Exhibit D, and his information added to Exhibit B. 

Additionally, Defendant’s counsel has repeatedly made comments that certain witnesses 

are not included in Plaintiff’s witness list. These comments surround individuals who are, in 

Plaintiff’s consideration, included in catchall categories of “all Plaintiff’s treating or attending 

physicians” as currently set forth in paragraph 24 of the Witness list and “any or all of 

Defendant’s personnel” as currently set forth in paragraph 25 of the Witness List. Still, in the 

vein of ensuring that both parties are on the same page as it relates to intended witnesses, 

Plaintiff seeks to amend to include the specific names thereunder. 

Plaintiff is still within the timeline provided by the Federal Rules of Civil Procedure for 

disclosing an expert witness. 

Case 2:09-cv-12336-SFC-MKM ECF No. 42, PageID.763 Filed 07/23/10 Page 6 of 16
3 

ARGUMENT

The current scheduling can be modified to allow the inclusion of Plaintiff’s expert 

witnesses listed above. The schedule can be modified when there is a showing of good cause 

and with the consent of the judge. F.R.C.P. 16(b)(4). “The primary measure of Rule 16’s ‘good 

cause’ standard is the moving party’s diligence in attempting to meet the case management 

order’s requirements.” Inge v. Rock Financial Corp., 281 F.3d 613, 625 (6th Cir. 2002), citing 

Bradford v. Dana Corp., 249 F.3d 807, 809 (8th Cir. 2001). 

The Scheduling Order requires that all witness to be called at trial must be listed by 

February 8, 2009. Plaintiff did not disregard the current scheduling order and filed a witness list 

(Exhibit B) on the required date. However, Plaintiff did not list experts in that order in as much 

as Plaintiff believed that deadline to be in accordance with The Federal Rules of Civil Procedure 

that require a party to disclose expert witnesses that will testify, 90 days before the trial date. 

F.R.C.P. 26(a)(2)(C)(i). Finding adequate experts was difficult and time consuming, and 

frankly did not arise prior to this time based on the foregoing understanding. Plaintiff did not 

intentionally disregard the Scheduling Order, indeed, the designation in the Order does not 

explicitly include or exclude expert witnesses. The Federal Rules of Civil Procedure require a 

party to disclose expert witnesses that will testify, 90 days before the trial date. F.R.C.P. 

26(a)(2)(C)(i). The current scheduling order lists the trial date as September/October. Based on 

the belief that the trial could begin as late as the end of October, the disclosure of these experts 

still comes before the 90 day cut-off date in accordance with the Court Rules. Alternatively, 

leave is sought for the filing. 

Case 2:09-cv-12336-SFC-MKM ECF No. 42, PageID.764 Filed 07/23/10 Page 7 of 16
4 

 Because disclosure of Plaintiff’s expert witnesses comes before the cut-off date, the 

Defendant will not be prejudiced as it has ample time to prepare for trial as prescribed under 

F.R.C.P.26(1)(2)(C)(i). 

 Not allowing an expert to testify as prescribed under Rule 37 “is a drastic remedy and 

should only be applied in cases where the party's conduct represents flagrant bad faith and 

callous disregard of the federal rules.” McNerney v. Archer Daniels Midland Co., 164 F.R.D. 

584, 587 (W.D.N.Y. 1995), citing Hinton v. Patnuade, 162 F.R.D. 435,439 (N.D.N.Y 1995), see 

also Bonin v. Chadron Cmty. Hosp., 163 F.R.D. 565 (D.Nev. 1995). 

Again and again, courts have found that the plaintiff’s failure to comply with the 

technical guidelines of Rule 26 was harmless because the defendant was not prejudiced but the 

district court provided for a minor monetary sanction which was upheld by the court of appeals. 

River City Capital, L.P. v. Board of County Com'rs, Clermont County, Ohio 491 F.3d 301 (6th 

Cir. 2007). In the case at hand, the defendant will not be prejudiced by allowing the testimony of 

plaintiff’s expert witnesses, as defendant has ample time to depose such witnesses if it so 

chooses and prepare for trial. Ample time is demonstrated by the fact that the expert witness 

disclosure is still within the 90 day time period prescribed under Rule 26. Other courts have also 

seen fit to extend time for the party opposite the disclosing party to depose an expert and prepare 

for trial. See Bonin v. Chadron Cmty. Hosp., 163 F.R.D. 565 (D.Nev. 1995). 

Also, Plaintiff’s initial disclosures to Defendant (Exhibit E) stated in paragraph 28 

“Plaintiff reserves the right to name expert witnesses in accordance with the Court Rules and 

Scheduling Order.” Therefore, Defendant had notice of Plaintiff adding expert witnesses to the 

witness list within the time frame provided by the Court Rules. For this reason, as well as the 

reasons stated above, Defendant is not prejudiced by Plaintiff’s amendments to the witness list. 

Case 2:09-cv-12336-SFC-MKM ECF No. 42, PageID.765 Filed 07/23/10 Page 8 of 16
5 

Plaintiff’s additional clarifications are for the benefit of the Defendant. All clarifications 

are included in Plaintiff’s Initial Disclosures (Exhibit E), or the denial of Plaintiff’s long term 

disability benefits (Exhibit A). 

CONCLUSION

For all of the above reasons Plaintiff requests that leave be granted to amend the 

scheduling order to add witnesses to the witness list (Exhibit B) and a document denying long 

term disability insurance to the exhibit list. Plaintiff has shown good cause for leave to amend 

and that Defendant will not be prejudiced by said amendments. 

Respectfully submitted, 

Dated: July 14, 2010 /s/Alyson Oliver

 KRESCH OLIVER PLLC 

 BY: Alyson Oliver P55020 

 Attorney for Plaintiff 

 Amy Chavez 

 24100 Southfield Road, #305 

 Southfield, MI 48075 

 248-327-6556 

 aoliver@krescholiver.com 

Case 2:09-cv-12336-SFC-MKM ECF No. 42, PageID.766 Filed 07/23/10 Page 9 of 16
6 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

AMY CHAVEZ, 

 Plaintiff 

Vs. No. 09-cv-12336 

 Judge Sean F. Cox 

WATERFORD SCHOOL DISTRICT, Mag. Judge Mona K. Majzoub 

 Defendant 

_____________________________________________________________________________/ 

ALYSON OLIVER P55020 MICHAEL D. WEAVER P43985 

Kresch Oliver, PLLC Plunkett Cooney 

Attorneys for Plaintiffs Attorney for Defendant

24100 Southfield Road 38505 Woodward Avenue 

Suite 305 Suite 2000 

Southfield, MI 48075 Bloomfield Hills, MI 48034 

(248)327-6556 (248)901-4025 

aoliver@krescholiver.com mweaver@plunkettcooney.com 

_____________________________________________________________________________/ 

‘Proposed’ ORDER GRANTING LEAVE 

TO AMEND WITNESS LIST AND EXHIBIT LIST

 This matter having come before the Court pursuant to Plaintiff’s Motion to Amend 

Witness and Exhibit List, the court hereby grants the Plaintiff’s motion to amend. 

 NOW, THEREFORE, IT IS ORDERED that Plaintiff is granted leave to amend the 

witness and exhibit list to add the proposed experts and document. 

Case 2:09-cv-12336-SFC-MKM ECF No. 42, PageID.767 Filed 07/23/10 Page 10 of 16
UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

AMY CHAVEZ, 

 Plaintiff 

Vs. No. 09-cv-12336 

 Judge Sean F. Cox 

WATERFORD SCHOOL DISTRICT, Mag. Judge Mona K. Majzoub 

 Defendant 

_____________________________________________________________________________/ 

ALYSON OLIVER P55020 MICHAEL D. WEAVER P43985 

Kresch Oliver, PLLC Plunkett Cooney 

Attorneys for Plaintiffs Attorney for Defendant

24100 Southfield Road 38505 Woodward Avenue 

Suite 305 Suite 2000 

Southfield, MI 48075 Bloomfield Hills, MI 48034 

(248)327-6556 (248)901-4025 

aoliver@krescholiver.com mweaver@plunkettcooney.com 

_____________________________________________________________________________/ 

AMENDED WITNESS LIST

1. Amy Chavez 

2. Yvonne Dixon 

3. Peni Aldrich 

4. Marcy Felegy 

5. Tanya Blaine 

6. Robert Neu 

7. Pam Trout 

Case 2:09-cv-12336-SFC-MKM ECF No. 42, PageID.768 Filed 07/23/10 Page 11 of 16
8. Kim Wasilk 

9. Kelly Hurley 

10. Rhonda Ernst 

11. Nan Begola 

12. Karin Vassilokis 

13. Darin Holley 

14. Sandra Scott 

15. Paula Cullison 

16. Lisa Fluder 

17. Melissa Leithem 

18. Kelly Fish 

19. Leanne DeRousse 

20. Matt DeRousse 

21. Joelle Donnelly 

22. Melissa Chittick 

23. Connie Garza-Beyer 

24. Gary L. Talbot, Expert 

25. William King, Expert 

26. Any and all of Plaintiff’s treating or attending physicians or other medical professionals 

who may have had contact with or treated with Plaintiff prior to or after the facts at issue, 

and all of their keepers of records. 

a. More specifically, 

i. Michael Rolnick, Ph.D., 

Case 2:09-cv-12336-SFC-MKM ECF No. 42, PageID.769 Filed 07/23/10 Page 12 of 16
ii. Dr. Ganley, 

iii. Dr. Bachinski, 

iv. Dr. Kaspo, 

v. Dr. Munk, 

vi. Rolnick & Merson, 

vii. Dr. Woelke, 

viii. Dr. Junk, 

ix. Douglas Smith. 

x. Any employees, assigns, agents, records custodians or other individuals 

who work with or for BCBS- MESSA disability insurance company 

xi. Any employees, assigns, agents, records custodians or other individuals 

who work for or with MEBS insurance company. 

xii. Any employees, assigns, agents, records custodians or other individuals 

who work for or with Henry Ford Hospital 

xiii. Any employees, assigns, agents, records custodians or other individuals 

who work with or for BCBS insurance company 

27. Any or all of Defendant’s personnel, past or present, who may have information relative 

to the facts at issue in the complaint, or information regarding policies, practices, training 

and other similar incidents. 

a. More Specifically, 

i. Keeper of records, Township of Waterford 

ii. Keeper of records, Waterford School District 

iii. Employees Past and Present, Township of Waterford 

Case 2:09-cv-12336-SFC-MKM ECF No. 42, PageID.770 Filed 07/23/10 Page 13 of 16
iv. Employees Past and present, Waterford School District. 

28. Any witness listed by or call by Defendant. 

29. All witnesses reveal in discovery of any kind. 

30. Any and all witnesses necessary to lay a foundation for introduction of exhibits or 

testimony for impeachment. 

31. Any and all witnesses necessary for impeachment. 

32. All witnesses necessary in rebuttal of those witnesses listed by Plaintiff. 

33. Plaintiff reserves the right to amend this Witness List throughout the course of discovery. 

34. Any and all custodians of record and documents pertaining to the subject matter of this 

litigation. 

Respectfully submitted, 

Dated: July 14, 2010 /s/Alyson Oliver

 KRESCH OLIVER PLLC 

 BY: Alyson Oliver P55020 

 Attorney for Plaintiff 

 Amy Chavez 

 24100 Southfield Road, #305 

 Southfield, MI 48075 

 248-327-6556 

 aoliver@krescholiver.com 

Case 2:09-cv-12336-SFC-MKM ECF No. 42, PageID.771 Filed 07/23/10 Page 14 of 16
UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

AMY CHAVEZ, 

 

 Plaintiff, 

Vs. Case No. 2:09-cv-12336 

 Hon. Sean F. Cox 

TOWNSHIP OF WATERFORD and 

WATERFORD SCHOOL DISTRICT, 

 

 Defendants. 

_______________________________________/ 

KRESCH OLIVER PLLC MICHAEL D. WEAVER P43985 

By: Alyson Oliver P55020 Plunnket Cooney 

Attorneys for Plaintiff Attorney for Defendants 

24100 Southfield Road Ste. 305 38505 Woodward, Suite 2000 

Southfield, MI 48075 Bloomfield Hills, MI 48034 

(248) 327-6556 248-901-4025 

aoliver@krescholiver.com mweaver@plunketcooney.com

_______________________________________/ 

PROOF OF SERVICE

Leisa D. Wilson, certifies that on the July 14, 2010, she served a copy of the Plaintiff’s Motion 

for Leave to Amend Witness List by first class mail to: 

Michael D. Weaver 

38505 Woodward, Ste 2000 

Bloomfield Hills, MI 48034 

By placing same in an envelope so addressed with the proper postage affixed thereto and 

depositing same in a receptacle kept for such purposes at 24100 Southfield Rd. Ste. 305 

Southfield, MI 48075. 

Case 2:09-cv-12336-SFC-MKM ECF No. 42, PageID.772 Filed 07/23/10 Page 15 of 16
"I declare that the statements above are true to the best of my knowledge, information and 

belief." 

 /s/ Leisa D. Wilson 

 Leisa D. Wilson 

Case 2:09-cv-12336-SFC-MKM ECF No. 42, PageID.773 Filed 07/23/10 Page 16 of 16