IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

DELOISE PRICE, | 

 | 

 PLAINTIFF | 

 | 

VS. | CASE NO. 2:06-CV-721-MHT 

 | 

WAL-MART STORES, INC., | 

et al., | 

 | 

 DEFENDANTS | 

EXTREME PERFORMANCE, INC.’S 

ANSWER

 Comes now the Defendant identified as Extreme Performance, Inc. and for 

answer to the Complaint filed in this matter states as follows: 

 1. It is admitted as of June 2005 that Plaintiff was represented to be a 

resident of Montgomery. Otherwise, this Defendant is without sufficient 

information to either admit or deny the allegations of this paragraph as of this time. 

 2. Denied. Extreme Performance, Inc. did not manufacture the product 

or sell the product to Wal-Mart. 

 3. No answer necessary. 

 4. Denied. Extreme Performance, Inc. did not manufacture or distribute 

the product to Wal-Mart. 

Case 2:06-cv-00721-MHT-TFM Document 13 Filed 10/23/2006 Page 1 of 9
2

 5. This Defendant is without sufficient information to admit or deny this 

allegation. 

 6. This Defendant is without sufficient information to admit or deny this 

allegation. 

 7. This Defendant is without sufficient information to admit or deny this 

allegation. 

 8. This Defendant adopts its responses to the prior paragraphs. 

 9. Denied. 

 10. Denied. 

 11. Denied as to Extreme Performance. Extreme Performance, Inc. did 

not manufacture, distribute, sell or assemble the product. 

 12. Denied. 

 13. This Defendant adopts its responses to the prior paragraphs. 

 14. Admitted that Extreme Performance is a distributor of exercise 

equipment and that is has licensed its name to be used by a manufacturer of 

exercise equipment but it did not sell, distribute, manufacture or assemble the 

product referred to in the complaint. 

 15. Denied. 

 16. Denied. 

 17. Denied. 

Case 2:06-cv-00721-MHT-TFM Document 13 Filed 10/23/2006 Page 2 of 9
3

 18. This Defendant adopts its responses to the prior paragraphs. 

 19. No answer necessary. 

 20. Admitted, but it is denied that Extreme Performance sold or 

distributed the product referenced in the complaint. 

 21. This Defendant is without sufficient information to either admit or 

deny the allegations of this paragraph. 

 22. Denied. 

 23. Denied. 

SECOND DEFENSE

 This Defendant did not manufacture, distribute, sell or assemble the product 

in question to Wal-Mart and its actions bear no causal relation to the claims of the 

Plaintiff. The name Extreme Performance was licensed to the manufacturer of the 

product so that it could sell the product directly to Wal-Mart. 

THIRD DEFENSE

To the extent Plaintiff’s claim for wantonness may invoke punitive damages, 

it violates the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments of the 

Constitution of the United States, on the following grounds: 

(a) It is a violation of the Due Process and Equal Protection 

Clauses of the Fourteenth Amendment of the United States 

Constitution to impose punitive damages, which are penal in 

nature, against a civil Defendant upon the Plaintiff’s satisfying 

a burden of proof which is less than the "beyond a reasonable 

doubt" burden of proof required in criminal cases; 

Case 2:06-cv-00721-MHT-TFM Document 13 Filed 10/23/2006 Page 3 of 9
4

(b) The procedures pursuant to which punitive damages are 

awarded may result in the award of joint and several judgments 

against multiple Defendants for different alleged acts of 

wrongdoing, which infringes the Due Process and Equal 

Protection Clauses of the Fourteenth Amendment of the United 

States Constitution; 

(c) The procedures pursuant to which punitive damages are 

awarded fail to provide a reasonable limit on the amount of the 

award against Defendant, which thereby violates the Due 

Process Clause of the Fourteenth Amendment of the United 

States Constitution. See Pacific Mut. Life Ins. Co. v. Haslip, 

111 S. Ct. 1032, 113 L. Ed. 2d 1. 

(d) The procedures pursuant to which punitive damages are 

awarded fail to provide specific standards for the amount of the 

award of punitive damages which thereby violates the Due 

Process Clause of the Fourteenth Amendment of the United 

States Constitution; 

(e) The procedures pursuant to which punitive damages are 

awarded result in the imposition of different penalties for the 

same or similar acts and, thus, violate the Equal Protection 

Clause of the Fourteenth Amendment of the United States 

Constitution; 

(f) The procedures pursuant to which punitive damages are 

awarded permit the imposition of punitive damages in excess of 

the maximum criminal fine for the same or similar conduct, 

which thereby infringes the Due Process Clause of the Fifth and 

Fourteenth Amendments and the Equal Protection Clause of the 

Fourteenth Amendment of the United States Constitution; and, 

 (h) The Retroactive application of punitive damages violates the 

contracts clause of the United States Constitution, Article I, 

Section 10. 

Case 2:06-cv-00721-MHT-TFM Document 13 Filed 10/23/2006 Page 4 of 9
5

(i) The Plaintiff’s claim of punitive damages violates the due 

process clause of Article I, Section 13 of the Constitution of 

Alabama, on the following grounds: 

(1) It is a violation of the due process clause to impose 

punitive damages which are penal in nature, upon a civil 

Defendant upon the Plaintiff’s satisfying a burden of 

proof less than the "beyond a reasonable doubt" burden 

of proof required in criminal cases; 

(2) The procedures pursuant to which punitive 

damages are awarded fail to provide a limit on the 

amount of the award against these defendants; 

(3) The procedures pursuant to which punitive 

damages are awarded are unconstitutionally vague; 

(4) The procedures pursuant to which punitive 

damages are awarded fail to provide specific standards 

for the amount of the award of punitive damages; and, 

(5) The award of the punitive damages in this case 

constituted a deprivation of property without due process 

of law. 

(j) The Plaintiff’s attempt to impose punitive or extra-contractual 

damages on these defendants, on the basis of vicarious liability 

for the conduct of others, violates the Fifth and Fourteenth 

Amendments of the United States Constitution. 

(k) The award of punitive damages to the Plaintiff in this action 

would constitute a deprivation of property without due process 

of law required under the Fifth and Fourteenth Amendments of 

the United States Constitution. 

(l) The procedures pursuant to which punitive damages are 

awarded permit the imposition of an excessive fine in violation 

of Article I, Section 15, of the Constitution of Alabama. 

Case 2:06-cv-00721-MHT-TFM Document 13 Filed 10/23/2006 Page 5 of 9
6

(m) The award of punitive damages against these defendants in this 

action would violate the prohibition against laws that impair the 

obligations of contracts in violation of Article I, Section 22 of 

the Constitution of Alabama. 

(n) The procedures pursuant to which punitive damages are 

awarded are vague and unpredictable such that they violate the 

defendant’s right to defend himself pursuant to Article I, 

Section 10 of the Constitution of Alabama. 

(o) The procedures pursuant to which punitive damages are 

awarded permit the imposition of punitive damages in excess of 

the amount established by the legislature under ALA. CODE, 

§ 27-1-17 (1975), in violation of the Due Process Clause of the 

Fifth and Fourteenth Amendments of the U. S. Constitution and 

Article, Section 6, of the Alabama Constitution. 

FOURTH DEFENSE

Plaintiff’s Complaint seeks to make Defendants liable for punitive damages. 

The United States Supreme Court has reversed the Alabama Supreme Court in the 

case styled BMW of North America, Inc. v. Gore, 116 S.Ct. 1589 (1996) on the 

issue of punitive damages. This Defendant adopts by reference the defenses, 

criteria, limitations, and standards mandated by the United States Supreme Court 

decision in that case. 

FIFTH DEFENSE

This Defendant affirmatively pleads that any punitive damages that the 

Plaintiff may recover in this case should be capped in keeping with ALA. CODE

§ 6-11-21 and in the spirit of the Alabama Supreme Court’s recent decision in 

Oliver v. Towns, 738 So. 2d 798 (Ala. 1999). 

Case 2:06-cv-00721-MHT-TFM Document 13 Filed 10/23/2006 Page 6 of 9
7

SIXTH DEFENSE

The demand for punitive damages in the instant case is subject to the 

limitations established by the Alabama Legislature and set forth in ALA. CODE

§ 6-11-21, (1975). The Alabama Supreme Court’s action in abolishing the 

legislatively-created cap on punitive damages was unconstitutional and is without 

effect. Under the Constitutions of the United States and the State of Alabama, the 

Alabama Supreme Court cannot abolish the cap created by the legislature on 

punitive damages through this judicial decision. See Honda Motor Company, Ltd. 

v. Oberg, 512 U. S. 415, 114 S. Ct. 2331, 2340 n. 9 (1994). 

SEVENTH DEFENSE

 This Defendant avers that the punitive damage cap set out in ALA. CODE

§ 6-11-21, (1975) applies to the instant case. See Horton Homes, Inc. v. Brooks, 

2001 WL 1520623 (Ala. Nov. 30, 2001). 

EIGHTH DEFENSE

 This Defendant avers that the punitive damages award is subject to 

limitation based on harm that has occurred and harm that is likely to occur. See 

TXO Production Corp. v. Alliance Resources Corp. 113 S. Ct. 2711 (US 1993). 

NINTH DEFENSE

 This Defendant avers that the method of imposing punitive damages violates 

Amendment 328, Section 6.11, which prohibits the use of a procedural rule to 

Case 2:06-cv-00721-MHT-TFM Document 13 Filed 10/23/2006 Page 7 of 9
8

abridge, enlarge or modify the substantive right of any party. See Leonard v. 

Terminix Intern. Co., L.P. 2002 WL 31341084. 

TENTH DEFENSE

 The imposition of punitive damages is an act of policy making on the part of 

the judiciary, in violation of Article III, Section 43 of the Constitution of Alabama. 

ELEVENTH DEFENSE

 This Defendant pleads the defense of contributory negligence. 

TWELFTH DEFENSE

 This Defendant pleads the defense of lack of notice of breach of warranty. 

Ala. Code 1975 § 7-2-607. 

 _S/Dennis R. Bailey__________ 

 Dennis R. Bailey 

 Attorney for Defendant 

Of counsel: 

RUSHTON, STAKELY, JOHNSTON & GARRETT, P.A. 

184 Commerce Street 

Post Office Box 270 

Montgomery, Alabama 36101-0270 

(334) 206-3234 (phone) 

(334) 481-0031 (fax) 

drb@rsjg.com (e-mail) 

Case 2:06-cv-00721-MHT-TFM Document 13 Filed 10/23/2006 Page 8 of 9
9

CERTIFICATE OF SERVICE

 I hereby certify that I have filed the foregoing pleading through the ECMF 

system on this the 23rd day of October, 2006, which will forward same to: 

 Jock M. Smith 

 Brian P. Strength 

 Valerie Rucker Russell 

 Cochran, Cherry, Givens, Smith, Lane & Taylor 

 Post Office Box 830419 

 Tuskegee, Alabama 36083 

 John E. Earnhardt 

 Robert Fowlkes 

 Maynard, Cooper & Gale 

 1901 Sixth Avenue North 

 2400 AmSouth/Harbert Plaza 

 Birmingham, Alabama 35203-2602 

 _S/Dennis R. Bailey_______________ 

 Of counsel 

Case 2:06-cv-00721-MHT-TFM Document 13 Filed 10/23/2006 Page 9 of 9