IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

TERRY DEESE, * 

 * 

 Plaintiff, * 

 * 

v. * Case No. 06-643-MHT 

 * 

CHAMPION ENTERPRISES, INC., * 

 * 

 Defendant. * 

PLAINTIFF’S OPPOSITION TO 

DEFENDANT’S MOTION TO STRIKE

Legend has requested that this Court strike three affidavits submitted by Plaintiff. 

Specifically, Exhibits 12 and 13 to Plaintiff’s Memorandum in Opposition to Defendant’s 

Motion for Summary Judgment – Preemption (hereinafter referred to as “Exhibit 12” and 

“Exhibit 13” respectively) and Exhibit 13 to Plaintiff’s Opposition to Defendant’s Motion for 

Summary Judgment as to Merits (hereinafter referred to as “Exhibit 13 – Merits”). Legend 

contends that Exhibit 12, Exhibit 13, and Exhibit 13 – Merits were submitted in violation of Rule 

26(a)(2)(B) of the Federal Rules of Civil Procedure. 

 Rule 26(a)(2)(B)(i) of the Federal Rules of Civil Procedure requires a written report 

regarding an expert expected to testify to contain “a complete statement of all opinions the 

witness will express and the basis and reasons for them.” Rule 26(a)(2)(B)(ii) requires the report 

to contain “the data or other information considered by the witness in forming” his opinion. 

Plaintiff previously satisfied Rule 26(a)(2)(B) and has not sought to add to the experts’ 

previously formed opinions. Legend argues Exhibits 12 and 13 are addenda to the experts’ 

reports submitted late and should be stricken. The exhibits, however, are merely a response to 

Legend’s attack on Plaintiff’s expert and a demonstration to the Court that Robert Parks and Dr. 

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Robert Kondner are in fact experts and the principles and methods used by Robert Parks to form 

his opinions were reliable. Legend has attacked the procedures used by Robert Parks in forming 

his opinions and questioned whether he should be qualified as an expert. Plaintiff has a right to 

respond to those attacks. Defendants suggest that they should be able to make ad hominem 

attacks on the Plaintiff’s experts and that when Plaintiff attempts to respond, their response 

should be stricken. 

 Specifically, pages 5 through 9 of Plaintiff’s Memorandum in Opposition to Defendant 

Champion Homes of Boaz, Inc.’s (“CHB”) Motion for Judgment on the Pleadings based upon 

Preemption references matters that were previously disclosed in the curriculum vitae’s or were 

learned in deposition of Defendant’s corporate designee when the Designee actually admitted he 

attended a seminar taught by one of Plaintiffs’ experts.1

 Id. 

 Rule 702 of the Federal Rules of Evidence states an expert is qualified based upon 

knowledge, skill, experience, training, or education. The first part of Exhibit 12 is not an 

additional opinion by the expert, but rather proof that he in fact is an expert. Plaintiff not only 

has a right to demonstrate the expert’s knowledge, skill, experience, training, or education to this 

Court, Plaintiff has an obligation to do so. This is especially true when Legend attacks the 

expert’s qualification as such. 

 Legend has also disputed the procedures used by the expert in forming his opinions. The 

second part of Exhibit 12 addresses Legend’s concerns. This latter part of the exhibit is a 

demonstration to the Court that the expert’s opinions were the product of reliable principles and 

 

1

 Such attacks by parties is not uncommon but should be soundly rejected: “Although stating 

that ‘it is undisputed that Dr. Rosen is one of the preeminent experts in his field’ and has ‘vast 

credentials,’ [the defendant] ‘suggests that the theory advanced by Dr. Rosen in order to prove 

the plaintiffs’ case is not adequately based on prevailing methods of assessing lead poisoning.’ 

We disagree.” Campbell v. Metropolitan Prop. & Cas. Ins. Co., 239 F.3d 179, 184 (2d Cir. 

2001). 

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methods. This Court has a duty to “ensure that any and all scientific testimony or evidence 

admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 

U.S. 579, 589 (1993). Plaintiff bears the burden of demonstrating to this Court that the expert is 

“’qualified to testify competently regarding the matters he intend[s] to address; the methodology 

by which the expert reached his conclusions [were] sufficiently reliable; and the testimony 

assists the trier of fact.’” McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1257 (11th Cir. 

2002), quoting Maiz v. Virani, 253 F.3d 641, 664 (11th Cir. 2001). The essence of the last of the 

Supreme Court’s Daubert related cases is highlighted in Kumbo Tire Co., Ltd. v. Carmichal, 526 

U.S. 137 (1999) in which Justice Breyer crystallized Daubert: 

[The purpose of gatekeeping] “is to make certain that an expert employs in the courtroom 

the same level of intellectual rigor that characterizes the practice of an expert in the 

relevant field.” 

Id. 

 By way of example, The Food and Drug Administration published a lengthy justification 

in the Federal Register for why it banned the herb ephedra from dietary supplement products. Its 

analysis wove together the basic pharmacology of the active ingredient of the herb, the adverse 

event reports the agency had received, and the peer-reviewed literature. Food and Drug 

Administration, “Final Rule Declaring Dietary Supplements Containing Ephedrine Alkaloids 

Adulterated Because They Present an Unreasonable Risk,” 69 Fed. Reg. 6787 (2004). 

Similarly, there are dozens upon dozens of studies which support Plaintiff’s expert’s 

opinions, including many which were HUD funded and endorsed which should stand up in court 

when an expert analyzes any manufacturer’s defective propensities. Plaintiff, therefore, must be 

allowed to fulfill his duty of illustrating to the Court the qualifications of his witnesses and that 

the methodologies they used were reliable. 

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The additional 193 pages attached to Exhibit 12 were simply more evidence that the 

principles and methods used are in fact reliable. It is important to note the additional 193 pages 

were not considered by the expert when he formed his opinions, but rather are a corroboration 

that the principles and methods used are reliable. This is a subtle, yet huge difference. The 

additional 193 pages were submitted for the one purpose of satisfying this Court and Legend that 

the expert used the proper protocol when he inspected the home.2 Plaintiff fails to see how 

describing to this Court the proper way to inspect a home in any way prejudices Legend. 

Importantly and ironically, Defendants argue that Plaintiff’s experts are not qualified but 

Plaintiff has provided in arbitration trials involving six homes to date learned treaties which 

support and prove Plaintiff’s theories (cited in part in Plaintiffs’ Opposition in this case) which 

are deemed reliable authority in part by defendants’ own expert and defendants cannot point to 

one (1) such study that says the way in which they are building these houses is recommended. If 

anyone is acting outside the professional community in forming opinions, it is Defendant’s 

expert(s). 

 Exhibit 13 is similar to Exhibit 12. Exhibit 13 too is a response to Legend’s concerns 

over the protocol used by the expert. It begins by describing the knowledge, skill, experience, 

training, or education of Plaintiff’s other expert, Dr. Robert Kondner. The latter part of the 

exhibit reaffirms that the principles and methods used to inspect the home were reliable. Again, 

Plaintiff fails to see how explaining to this Court the qualifications of its expert and explaining 

the proper home inspection procedures is in any way prejudicial to Legend. 

 

2

 The Federal Judicial Center’s REFERENCE MANUAL ON SCIENTIFIC EVIDENCE (2d ed. 

2000) discusses methodologies. The summary on p.469 discusses the types of evidence to be 

considered in a “general causation” study.

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 Legend also requests that this Court strike a presentation authored by Legend’s own 

expert. Plaintiff has a right to cross-examine Legend’s expert on his opinions, despite the date 

on which he came to those opinions. Furthermore, Legend incorrectly states Plaintiff’s experts 

have relied on that presentation. None of Plaintiff’s experts used Exhibit 13 – Merits to form 

their conclusions. Again, Rule 26(a)(2)(B) states Plaintiff must disclose “information considered 

by the witness in forming” his opinions. Plaintiff does not have an obligation under the rule to 

disclose information not considered in the forming of expert opinions. 

Respectfully submitted this 17th day of December, 2007. 

 /s/ C. Lance Gould _ 

 C. LANCE GOULD (ASB-0913-G66C) 

 Attorney for Plaintiff 

OF COUNSEL: 

BEASLEY, ALLEN, CROW, 

METHVIN, PORTIS & MILES, P.C. 

Attorneys at Law 

Post Office Box 4160 

Montgomery, AL 36103-4160 

(334) 269-2343 

(334) 954-7555 (fax) 

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CERTIFICATE OF SERVICE

I hereby certify that I have electronically filed the original of the foregoing document in 

this Court and served a copy upon all Defendants of record as listed below by placing a copy of 

same in the United States Mail, first class, postage prepaid on this the 17th day of December, 

2007. 

 /s/ C. Lance Gould 

 OF COUNSEL 

Gregory S. Ritchey 

RITCHEY & SIMPSON, PLLC 

3288 Morgan Drive, Suite 100 

Birmingham, Alabama 35216 

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