IN THE DISTRICT COURT OF THE UNITED STATES 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

WILLIE MCNAIR, ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) No. 2:06-cv-695-WKW 

 ) 

RICHARD ALLEN, et al., ) 

 ) 

 Defendants. ) 

________________________________ 

 ) 

JAMES CALLAHAN, ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) No. 2:06-cv-919-WKW 

 ) 

RICHARD ALLEN, et al., ) 

 ) 

 Defendants. ) 

DEFENDANTS’ UNOPPOSED MOTION TO FILE EXPERT WITNESS

DEPOSITIONS WITH CLERK’S OFFICE 

 The defendants respectfully request that the expert 

witness depositions of Drs. Mark Heath and Mark Dershwitz 

be filed with the Clerk’s Office of this Court. As good 

cause to grant this motion, the defendants set forth the 

following: 

 1. On December 14, 2007, this Court granted Callahan 

a stay of his execution scheduled for January 31, 2008. 

Pursuant to 28 U.S.C. § 1292(a), the defendants intend to 

Case 2:06-cv-00695-WKW-CSC Document 155 Filed 12/28/2007 Page 1 of 6
2 

appeal this Court’s order. In their appellate brief, the 

defendants intend to provide citations to the expert 

witness depositions. Although the expert witness 

depositions have been heavily relied on by the parties and 

the Court, they are not part of the record because they 

were emailed directly to the Court. This Court requested 

such action because the depositions were taken on the 

weekend of September 21-23, 2007, and the Court wanted to 

read the depositions before making rulings on the pending 

dispositive motions and before the then-scheduled trial 

date of October 3-5, 2007. Had the Court not issued such a 

directive, the defendants would have filed the expert 

witness depositions as exhibits to their supplemental brief 

that was filed on September 27, 2007. See Doc. 125. 

 2. There can be no dispute that the Court heavily 

relied on the expert witness depositions in ruling on the 

dispositive motions and in granting Callahan’s request for 

a stay of execution. See Docs. 146, 154. In its order 

that inter alia denied the defendants’ motion for summary 

judgment, this Court stated it considered the expert 

witness depositions. For example, the Court stated as 

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3 

follows regarding the parties’ reliance on the expert 

witness depositions in briefing the dispositive issues: 

 Not only were all participants ready 

for trial on October 3, but the court had 

also finalized this opinion ruling on 

pending dispositive motions. In 

anticipation of supplemental briefs 

following the deposition of experts, the 

court had not yet filed the opinion. The 

defendants had filed a Motion for 

Judgment on the Pleadings and Alternative 

Motion for Summary Judgment Regarding 

Statute of Limitations (Doc. 43) on March 

14, 2007, and a Motion for Summary 

Dismissal Based on the Doctrine of Laches 

(Doc. 53) on April 24, 2007. On August 

16, 2007, before the completion of 

discovery, the defendants filed a Motion 

for Summary Judgment (Doc. 80) on the 

merits. After the depositions of the 

parties’ experts were taken, the parties 

supplemented their summary judgment 

briefing on September 27, 2007. Docs. 

125, 126. [Footnote 3 omitted]. 

Doc. 146 at 6. Later in the order, this Court indicated it 

relied on the expert witness depositions in denying the 

summary judgment motion: “...the respective experts are 

unable to agree on so basic a concept as a working 

definition of ‘consciousness’ and further dispute many 

basic points of the protocol and its alternatives, 

including the degree of the risk of pain.” Doc. 146 at 16 

n.14. Likewise, in its order granting Callahan’s request 

for a stay of execution, the Court indicated that it relied 

Case 2:06-cv-00695-WKW-CSC Document 155 Filed 12/28/2007 Page 3 of 6
4 

on all of the evidence presented at the “summary judgment 

stage.” Doc. 154 at 8 n.9. 

 3. The defendants will cite to the expert witness 

depositions in their brief that will be filed in the 

Eleventh Circuit Court of Appeals. However, the expert 

witness depositions, although clearly relied on by the 

parties and the court, were not filed in the Clerk’s Office 

due to the exigencies of the circumstances. The Eleventh 

Circuit should have available all of the evidence that this 

Court considered in determining that Callahan was entitled 

to a stay of execution. Rule 10(a) of the Federal Rules of 

Appellate Procedure states that “the original papers and 

exhibits filed in the district court” “constitute the 

record on appeal.” The expert witness depositions fall in 

this category because they were filed directly with the 

Court at its directive. 

 4. Plaintiffs’ counsel has been emailed a copy of 

this motion and has no objection. 

 WHEREFORE, for the foregoing reasons, the defendants 

respectfully request this Court direct the Clerk to file 

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the expert witness depositions that will be provided by the 

Court. 

Respectfully submitted, 

 Troy King (KIN047) 

 Alabama Attorney General 

 s/ J. Clayton Crenshaw 

J. Clayton Crenshaw (CRE007) 

Assistant Attorney General 

s/ James W. Davis 

James W. Davis (DAV013)

Assistant Attorney General 

Office of the Attorney General 

Alabama State House 

11 South Union Street 

Montgomery, AL 36130 

Telephone: 334.242.7300 

Fax: 334.353.3637 

ccrenshaw@ago.state.al.us

jdavis@ago.state.al.us 

Case 2:06-cv-00695-WKW-CSC Document 155 Filed 12/28/2007 Page 5 of 6
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CERTIFICATE OF SERVICE

This is to certify that on the 28th day of December, 

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, Vincent 

R. Fitzpatrick, Jr., Heather K. McDevitt, and Stephanie 

Cohen

s/ J. Clayton Crenshaw 

J. Clayton Crenshaw

Assistant Attorney General 

Office of the Attorney General 

11 South Union Street 

Montgomery, AL 36130 

Telephone: 334.242.7300 

Fax: 334.353.3637 

ccrenshaw@ago.state.al.us 

Case 2:06-cv-00695-WKW-CSC Document 155 Filed 12/28/2007 Page 6 of 6
IN THE DISTRICT COURT OF THE UNITED STATES 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

WILLIE MCNAIR, ) 

 ) 

 Plaintiff/Counter-Defendant ) 

 ) 

v. ) No. 2:06-cv-695-WKW 

 ) 

RICHARD ALLEN, et al., ) 

 ) 

 Defendants/Counter-Plaintiffs ) 

_____________________________________

 ) 

JAMES CALLAHAN, ) 

 ) 

 Plaintiff/Counter-Defendant, ) 

 ) 

v. ) No. 2:06-cv-919-WKW 

 ) 

RICHARD ALLEN, et al., ) 

 ) 

 Defendants/Counter-Plaintiffs. ) 

ORDER

 For good cause demonstrated, the defendants’ motion 

requesting the Court file the expert witness depositions 

with the Clerk’s Office is GRANTED. Accordingly, the 

Clerk’s Office will file and attach document numbers to the 

depositions of Drs. Mark Heath and Mark Derswhitz. 

 DONE this 28th day of December, 2007. 

 ____________________________ 

 UNITED STATES DISTRICT JUDGE 

 

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