1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION

WILLIE MCNAIR, ) 

 ) 

 Plaintiff/Counter-Defendant, ) 

 ) 

v. ) No. 2:06-cv-00695-WKW-CSC 

 ) 

RICHARD ALLEN, Commissioner, ) 

Alabama Deparment of ) 

Corrections, et al., ) 

 ) 

 Defendants/Counter-Plaintiffs. ) 

__________________________________ 

JAMES CALLAHAN, ) 

 ) 

 Plaintiff/Counter-Defendant, ) 

 ) 

v. ) No. 2:06-cv-00919-WKW-CSC 

 ) 

RICHARD ALLEN, et al., ) 

 ) 

 Defendants/Counter-Plaintiffs. ) 

DEFENDANTS’ SUPPLEMENTAL BRIEF 

IN SUPPORT OF THEIR MOTION TO QUASH SUBPOENAS 

ISSUED TO “EMT-1” AND “EMT-2”

 Defendants Richard Allen, Commissioner, and Grantt Culliver, Warden, 

respectfully submit this supplemental brief in support of their Motion to Quash. 

 The Court asked the Defendants to confirm that the potential witnesses known as 

“EMT-1” and “EMT-2” are residents of the State of Alabama. Defendants confirm that 

the witnesses do, in fact, reside in the State of Alabama. Defendants are informed that 

the witnesses live within the State but in excess of 120 miles from Montgomery. 

Case 2:06-cv-00695-WKW-CSC Document 122 Filed 09/26/2007 Page 1 of 5
 2 

 Defendants have thus shown that both witnesses work (EMT-1 works full time, 

and EMT-2 works part-time), that both would have at least a 240-mile round trip if 

summoned to testify, and that these witnesses are not employed by the State. Moreover, 

EMT-1 will be out of the country during the week of trial. 

 In considering whether the subpoenas would impose an undue burden on these 

witnesses, Defendants ask the Court to consider, in addition to what has already been 

shown, whether there is any legitimate basis to call these witnesses to trial. 

 There simply is no need for any additional testimony from EMT-1 and EMT-2. 

Plaintiffs’ expert, Dr. Mark Heath, read the deposition testimony from EMT-1 and EMT2 and confirmed that these witnesses are qualified to establish IV access: 

Q. EMT paramedics as a group, would you agree that they hold the 

qualifications necessary to establish intravenous access? 

A. Yes. That's an essential feature of their professional activity. 

Q. You are aware that there are two specific EMT paramedics who 

perform that role in executions in Alabama, are you not? 

A. I am, yes. 

Q. If I refer to those two persons as EMT 1 and EMT 2, are you familiar 

with that designation? 

A. Yes. 

Q. Do you have any criticisms of EMT 1 or EMT 2 specifically that calls 

into question their qualifications to establish IV access? 

A. I have a few concerns regarding the use of EMTs. They establish IV 

access, but they leave once they've done that. So once IV access is 

established, there is no qualified person surveying the IV systems. It's 

more their absence in the critical part of the procedure than their presence 

that concerns me. 

Case 2:06-cv-00695-WKW-CSC Document 122 Filed 09/26/2007 Page 2 of 5
 3 

That aside, there is nothing about their -- that I know about their 

professional background that would call into question their ability to meet 

standards for placing peripheral intravenous lines. . . . 

Q. Have you reviewed the depositions of EMT 1 and EMT 2? 

A. I have, yes. 

Q. . . . [Y]ou do not intend to express an opinion that EMT 1 and EMT 2 

are unqualified to establish peripheral IV access; is that correct? 

A. . . . I could have concern about EMTs, whether they are okay, but 

these individuals, there is nothing that I see about them that says they 

should not be establishing IVs in any adult human being. 

Deposition of Dr. Mark Heath, pp. 157-59 (emphasis added). 

 On this point, Defendants agree with Dr. Heath. EMT-1 and EMT-2 are qualified 

to establish IV access. Plaintiffs’ real complaint is that after establishing IV access, the 

EMTs do not remain with the inmate to monitor the IV equipment. Moreover, Plaintiffs 

complain that these EMTs could arguably be replaced with less qualified persons. The 

EMTs cannot provide any helpful testimony on these points. 

 Thus, unless Plaintiffs wish to disavow their own expert’s testimony, everyone 

agrees that EMT-1 and EMT-2 are qualified to establish IV access. There is no 

legitimate reason to subject these witnesses to the burden of personally appearing. With 

no legitimate need, the burden is, by definition, “undue.” 

 For these reasons, Defendants ask that this Court quash the subpoenas to EMT-1 

and EMT-2, and instead to permit these witnesses to testify by deposition. 

 Respectfully submitted, 

TROY KING (KIN047) 

ATTORNEY GENERAL 

BY: 

Case 2:06-cv-00695-WKW-CSC Document 122 Filed 09/26/2007 Page 3 of 5
 4 

s/ James W. Davis 

James W. Davis (DAV103)

Assistant Attorney General 

J. Clayton Crenshaw (CRE007)

Assistant Attorney General 

OF COUNSEL: 

Office of the Attorney General 

11 South Union Street 

Montgomery, AL 36130 

(334) 242-7300 

(334) 353-8440 Fax 

Email: ccrenshaw@ago.state.al.us 

jimdavis@ago.state.al.us 

CERTIFICATE OF SERVICE

This is to certify that on the 26th day of September, 2007, a copy of the foregoing 

has been electronically filed with the Clerk of the Court using the CM/ECF system, 

which will electronically send a copy of the same to the following: 

Randall S. Susskind 

Cathleen I. Price 

Equal Justice Initiative of Alabama 

122 Commerce Street 

Montgomery, AL 36104 

cprice@eji.org

rsusskind@eji.org

Vincent R. Fitzpatrick, Jr. (SDNY Bar No. VF2907) 

Heather K. Mcdevitt (SDNY Bar No. HM9973) 

Stephanie Cohen (SDNY Bar No. SM7006) 

White & Case LLP 

1155 Avenue of the Americas 

New York, NY 10036 

Telephone: (212) 819-8200 

Facsimile: (212) 354-8113 

vfitzpatrick@whitecase.com

hmcdevitt@whitecase.com

stephcohen@whitecase.com

Case 2:06-cv-00695-WKW-CSC Document 122 Filed 09/26/2007 Page 4 of 5
 5 

OF COUNSEL 

S/ James W. Davis 

James W. Davis (DAV103)

Assistant Attorney General 

Office of the Attorney General 

11 South Union Street 

Montgomery, AL 36130 

(334) 242-7300 

(334) 353-8440 Fax 

Email: jimdavis@ago.state.al.us 

Case 2:06-cv-00695-WKW-CSC Document 122 Filed 09/26/2007 Page 5 of 5