Brief in Support of Motion to Strike Zervos Declaration — Norris v. Stanley (W.D. Mich.)

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IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF MICHIGAN 
 
 
 
    
    
 
   
JEANNA NORRIS, on behalf of herself 
) 
and all others similarly situated, 
) 
 
 
 
 
 
 
   ) 
 
   
 
 
 
 
 
Plaintiffs, 
 
 
   ) 
             
   ) 
 
v. 
 
    
                           ) 
 
 
    
 
 
 
   ) 
Case No. 1:21-cv-756 
SAMUEL STANLEY, JR., in his        
   ) 
 
 
 
 
official capacity as President of 
) 
  
Michigan State University; DIANNE            ) 
 
BYRUM, in her official capacity as Chair    ) 
 
of the Board of Trustees, DAN KELLY,       ) 
in his official capacity as Vice Chair              ) 
 
of the Board of Trustees; and RENEE 
) 
JEFFERSON, PAT O’KEEFE,   
) 
 
 
BRIANNA T. SCOTT, KELLY TEBAY,  
) 
and REMA VASSAR  in their official  
) 
capacities as Members of the Board of 
) 
 
Trustees, of Michigan State University, 
) 
and John and Jane Does 1-10, 
) 
 
 
 
) 
 
Defendants.   
) 
 
BRIEF IN SUPPORT OF PLAINTIFF’s MOTION FOR ALTERNATIVE FORMS OF 
RELIEF IN LIGHT OF THE UNAUTHORIZED LATE FILING OF A SECOND 
DR. ZERVOS DECLARATION 
 
 
 
Plaintiff filed her reply to Defendants’ Opposition to her Motion for a Preliminary 
Injunction on September 15, 2021, in accordance with the briefing schedule set by the Court.  She 
later agreed to Defendants filing a surreply focused on a specific point (MSU’s legal authority 
under Michigan police power law to mandate vaccinations). But Plaintiff had specifically based 
her consent to the surreply on the condition that Defendants file any such brief by September 17 in 
order to allow all parties time to sufficiently prepare for the hearing set for Wednesday, September 
22.  See Ex. 1 (email with opposing counsel).  In conformity with discussions among counsel, 
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Defendants next filed a motion for leave to file their surreply on September 17, along with the 
brief itself.  See Norris v. Stanley et al, No. 1:21-cv-756, Dkt Nos. 13, 14.  So far, so good.  Plaintiff 
does not object to that filing, even though it makes new legal arguments, because undersigned 
counsel is prepared to simply rebut Defendants’ new and erroneous contentions about Michigan 
law at the September 22 hearing itself. 
However, Defendants now attempt to take a liberty—for strategic advantage—that Plaintiff 
cannot allow to go unaddressed.  Without any warning, and while their motion for leave to file a 
surreply was still pending, Defendants filed an unauthorized, second 18-page declaration written 
by their medical expert, Dr. Marcus Zervos (“Late 2d Zervos Decl.”), on September 20 at 
approximately 3:30 p.m., while undersigned counsel were in a pre-scheduled meeting preparing 
for the September 22 hearing.  See Norris v. Stanley et al, No. 1:21-cv-756, Dkt No. 17.  At no 
time did Defendants’ counsel ever discuss this second declaration with counsel for the Plaintiff.  It 
came out of the blue.  It is improper.  And it appears designed to capitalize on the fact that Plaintiff 
and her counsel are in the middle of final hearing preparations, all while traveling to Kalamazoo.  
Defense counsel knows the parties are under tight time limits of 90 minutes each for tomorrow’s 
hearing.  Yet this late 18-page expert hit makes a mockery of the agreement between counsel. 
Moreover, filing an extensive new medical declaration so close to the hearing only 
highlights Defendants’ desperation to find some way to paper over a key gap (even after all of the 
preliminary injunction filings in this case), which is that there is nothing MSU can point to showing 
that it even considered the issue of natural immunity before issuing its Directive.*  Thus, the Court 
 
* Plaintiff also alerts the Court that it should be especially vigilant to shut down any attempt at the 
September 22 hearing by Defendants to try to come forward, for the first time and after all briefing 
has closed, with something—anything—trying to show that they considered and addressed the 
issue of natural immunity before issuing their Directive.  Dr. Zervos’s post hoc declarations about 
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should recognize Defendants’ late hit by Dr. Zervos for what it is and take the steps needed to 
restore a level playing field going into the nationally significant September 22 hearing. 
Plaintiff principally moves to strike on the grounds that Defendants are not entitled to 
submit yesterday’s filing, which neither accompanied their surreply nor buttresses it, but rather 
pertains to an entirely separate matter (the scientific evidence underpinning natural immunity).  
Indeed, the late second Zervos declaration adds insult to injury by acknowledging that Dr. Zervos 
is also clearly acting outside his lane by offering a declaration to rebut a legal reply brief.  See Late 
2d Zervos Decl. at ¶ 1-2.  Alternatively, Plaintiff moves to file a reply to second Zervos declaration 
from her own expert, Dr. Hooman Noorchashm, recognizing that this solution is not ideal given 
both the lateness of the hour and the burden imposed on the Court of reviewing additional scientific 
material so close to the hearing.  See Ex. 2 (Noorchashm Rep. to Late 2d Zervos Decl.).  That is 
why Plaintiff requests that form of relief only in the alternative.  Whatever form of relief the Court 
grants, however, Defendants (the non-moving party) should not be allowed to (1) put in an 
extensive 18-page, new medical declaration with less than 48 hours before the preliminary 
injunction hearing; while (2) shielding simultaneously their sponsoring declarant, Dr. Zervos, from 
cross examination at the hearing. 
Plaintiff filed this motion as expeditiously as possible under the circumstances given that 
Dr. Noorchashm must travel from Pennsylvania, counsel Hageman must travel from Wyoming, 
and counsel Younes must travel from Washington, D.C. for the hearing and given that this team 
for the hearing planned final, on-the-ground preparations for Tuesday evening, September 21 in 
Kalamazoo, so they are ready for the Wednesday morning, September 22, hearing.  
 
studies that MSU apparently wished it had reviewed prior to issuing the Directive cannot 
compensate for that deficiency. 
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ARGUMENT 
 
Under both the Rules of Federal Procedure and the Local Rules, “parties do not have a right 
to file a surreply brief[.]” Albino-Martinez v. Adducci, 454 F. Supp. 3d 642 (E.D. Mich. 2020); see 
also Jones v. Northcoast Behavioral Healthcare Sys., 84 Fed. App’x 597, 599 (6th Cir. 2003).  
Accordingly, parties must seek leave to file a surreply.  See Harshaw v. Bethany Christian Servs., 
No. 1:08-cv-104, 2010 WL 610262 (W.D. Mich. Feb. 19, 2010) (Maloney, J.) (granting motion to 
strike the equivalent of a surreply filed without first seeking leave); see also Nett v. Wells Fargo 
Home Mortg. Inc., 2011 WL 1519166 (E.D. Mich. 2011). 
Although the Federal Rules of Civil Procedure do not expressly permit the filing of 
sur-replies, such filings may be allowed in the appropriate circumstances, 
especially “when new submissions and/or arguments are included in a reply brief, 
and a nonmovant’s ability to respond to the new evidence has been vitiated.” 
(Emphasis added). 
 
First Technology Capital, Inc. v. Banctec, 2017 WL 2734716, *1 (E.D. Ky. 2017), quoting Key v. 
Shelby Cnty., 551 Fed. App’x 262, 265 (6th Cir. 2014). “[M]any courts have noted” that surreplies 
‘are highly disfavored[.]’” First Technology, 2017 WL 2734716 *1, quoting Liberty Legal Found. 
v. Nat’l Democratic Party of the USA, 875 F. Supp. 2d 791, 797 (W.D. Tenn. 2012). 
 
Despite this case law, out of litigation courtesy and in light of Plaintiff’s enlarged reply 
brief, Plaintiff nevertheless agreed to Defendants’ proposal to file a surreply on a narrow topic—
MSU’s police power under state law.  Part of that agreement, however, included a negotiated 
timeframe for the surreply that would give all parties sufficient time to prepare for the hearing.  In 
their opposition brief, Plaintiffs had been content to rely on CDC and Department of Education 
guidance as their only source of authority but when, on reply, Plaintiffs pointed out that such 
guidance provides no legal basis for MSU’s Directive and that Jacobson police power resides only 
in a state legislature and not in either the federal government or in state university administrators, 
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Defendants realized they had to try to supply a state law basis to shore up their Directive.  Despite 
the fact that Defendants should have earlier offered in their opposition brief an argument trying to 
connect up their Jacobson defense to a claimed delegation of police power to MSU, Plaintiff let 
that slide, content to rebut that untimely legal defense at the September 22 hearing. 
But, as the saying goes, “give an inch and they take a mile.”  Late yesterday, Defendants 
filed their unauthorized second Zervos declaration without explanation or even seeking leave to 
do so.  It is manifestly improper for Defendants to simply file a new scientific declaration when 
the pre-hearing filings on that topic had already come to rest, especially so close in time to the 
hearing.  See Pride v. BIC Corp., 218 F.3d 566, 575-75, 578-79 (6th Cir. 2000) (affirming district 
court decision below in which a motion to strike late-filed expert testimony was granted); Seay v. 
TVA, 339 F.3d 454, 482 n.9 (6th Cir. 2003) (“[Defendant] argues that Plaintiff could have filed a 
surreply . . . [T]his is beside the point, as the district court granted summary judgment only three 
days after TVA filed the reply brief, arguably too swift for Plaintiff to have requested a surreply.”). 
Defendants had and continue to have the option of calling Dr. Zervos to testify upon points in 
dispute between him and Dr. Noorchashm.  So yesterday’s late declaration was an attempt to testify 
on paper while dodging the downside risk of exposing Dr. Zervos to cross examination tomorrow.   
Moreover, the second Zervos declaration contained no information that could not have 
been included in Dr. Zervos’s initial Declaration, responding as it did to Drs. Noorchashm’s, 
Bhattacharya’s, and Kulldorff’s Declarations on the subject of natural immunity and thus to their 
expert opinions rejecting MSU’s dubious claim of medical necessity for vaccinating individuals 
who have recovered from COVID-19 and the risks of mandating the vaccine for such naturally 
immune individuals.  See Crenshaw v. Portfolio Recovery Assocs., 433 F. Supp. 3d 1057, 1063 
(W.D. Ky. 2020) (“a surreply is unwarranted because Crenshaw’s reply merely responds to 
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arguments made by Defendants in their response.  As such, there is no valid reason to grant leave 
for Defendants to file an additional reply.”). 
 
If the Court is not inclined to strike the late second Zervos declaration, Plaintiff respectfully 
submits that, since she bears the burden of proof, she is entitled to the last word on the subject and 
should be permitted to file a response to the untimely additional medical points Dr. Zervos tries to 
make without going on the stand.  Cf. Seay, 339 F.3d at 481 (holding that, where defendants’ 
submissions involved new evidence, including a new declaration, summary judgment was 
inappropriate “as Plaintiff was not accorded an adequate opportunity to respond to the new 
evidence presented with [Defendant’s] reply briefs.”); Crenshaw, 433 F. Supp. 3d 1063 (W.D. Ky. 
2020) (“Generally speaking, sur-replies are highly disfavored, as they usually are a strategic effort 
by the nonmoving party [i.e., the one not bearing the burden] to have the last word on the matter.”). 
CONCLUSION 
Defendants’ strategic and unauthorized second Zervos declaration should either be struck 
from the record or, alternatively, Plaintiff should be permitted to file the attached Noorchashm 
reply to the late Zervos declaration in light of the fact that Plaintiff bears the burden of proof. 
September 21, 2021 
Respectfully submitted, 
 
 
/s/ Jenin Younes  
Jenin Younes 
Litigation Counsel 
Jenin.Younes@ncla.legal 
Admitted in this Court 
* Admitted only in New York.  DC practice 
limited to matters and proceedings before 
United States courts and agencies.  
Practicing under members of the District of 
Columbia Bar. 
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/s/ Harriet Hageman  
/s/ Harriet Hageman,* MSB #87482  
Senior Litigation Counsel 
Admitted in this Court 
Harriet.Hageman@ncla.legal 
* Admitted only in Wyoming, Colorado, and 
Nebraska.  Practice limited to matters and 
proceedings before United States Courts and 
agencies.  Practicing under members of the 
District of Columbia Bar. 
 
/s/ John Vecchione  
/s/ John Vecchione  
Senior Litigation Counsel 
John.Vecchione@ncla.legal 
 
 
 
 
 
 
 
Admitted in this Court 
 
NEW CIVIL LIBERTIES ALLIANCE 
1225 19th Street NW, Suite 450 
Washington, DC 20036 
Telephone: (202) 869-5210 
Facsimile: (202) 869-5238 
 
 
Attorneys for Plaintiffs
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CERTIFICATE OF COMPLIANCE 
PURSUANT TO CIV. L. R. 7.3(b)(i) 
 
 
I hereby certify that this Brief contains 1,690 words, as produced by and counted by the 
Microsoft Word Office 365 software. 
 
 
 
 
 
 
 
 
 
 
____/s/ Jenin Younes 
Case 1:21-cv-00756-PLM-SJB   ECF No. 22-1,  PageID.749   Filed 09/21/21   Page 8 of 8

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