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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT

OF ALABAMA, NORTHERN DIVISION

Deloise Price, )

)

Plaintiff, )

)

vs. ) CIVIL ACTION NO. 2: 06 cv721-MHT

 )

Wal-Mart Stores, Inc., )

Extreme Performance, Inc., )

)

Defendants. )

RESPONSE TO MOTION TO DISMISS

Plaintiff files this response to the Defendants’ Motion to Dismiss and states:

1. On August 3, 2007, the Defendants filed a Motion to Dismiss the Plaintiff’s

claims alleging that she had somehow committed “fraud upon the court.” (Doc. 24, p.1) 

2. Plaintiff has done no such thing. It is true that she was in a previous lawsuit

involving an incident in November of 1998 at Bill’s Dollar Store in Camden, AL. (Doc. 24, Ex.

D) She freely admitted that in her deposition. (Doc. 24, Ex. A, 23:13) It is true that some of the

same complaints she had after her incident at Bill’s Dollar Store happen to be some of the same

complaints that she had after her fall in this case. Far from being some type of fraud, it is to be

expected. 

3. The Defendants’ entire argument is based on the assertion that Plaintiff is

“attempting to claim damages using the same complaints she used in a personal injury lawsuit in

Wilcox County in 2001 while claiming she was in essentially excellent health prior to the

accident in this case.” (Doc. 24, p.3) Defendants assume that none of Plaintiff’s injuries from the

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1998 incident ever healed, that none of her injuries ever got any better, and that her condition

never improved in the six years prior to her fall off of the exercise bike in 2004. They must

assume this or else their logic makes no sense. They are, in effect, arguing that because she

complains about certain things after both falls she must be lying, while never considering the

possibility that her condition improved in the six years between incidents. For example, on page

one of Exhibit E to the Defendants’ motion, they make the following comparison from both

depositions:

19-Jan-07

“Before this happened I was playing ball and doing my household, you know, and going

anywhere that I wanted, you know, to go and do, driving, playing with the grandchildren

24/7 and having sex with my husband when I wanted.”

18-Dec-01

“I can’t wear heel and things like other peoples. I have to wear flat, soft shoes all the

time, and I’m constantly in pain all the time. And it’s caused so much conflict between

me and my husband, sex and whatnot. I can’t even have sex and stuff like that. It’s so

painful, my hip and leg.”

It is entirely reasonable that there was a period of time after her 1998 incident where she could

not do some of the things detailed in the testimony in 2001, but that she did get better over six

years so that prior to the 2004 incident, she could do the things detailed in the 2007 testimony. 

Yet Defendants have pointed out these two excerpts as proof of what they loosely term perjury

when in fact there is nothing inherently contradictory at all about the two statements. If closely

examined, most of Exhibit E follows this same pattern. 

4. Even if the Plaintiff had given inconsistent testimony in this case from her

previous deposition years before, the Defendant is entitled to cross-examine and attempt to

impeach the Plaintiff with that previous testimony. It will be left to the jury to determine if the

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Plaintiff is testifying truthfully in this case. That is that way it is always done, and this case

should be no different. Clearly, the Defendants have fallen short of the burden of proving that

this Court should deny the Plaintiff her day in Court. 

5. Attached to this response is an affidavit from Ms. Price explaining that she did

not intentionally give any contradictory testimony. (Ex. A) She states that she did suffer from

some problems after her earlier fall, but most of those problems had resolved prior to the fall

from the bicycle in this case. (Ex. A) She also clears up the issue of the prior epidural injections,

which she states were for pain in her foot, which she has not claimed in this case. (Ex. A) 

6. The Court has the power to regulate litigation. Link v. Wabash Railroad Co., 370

U.S. 626, 630-631 (1962). However, denying a litigant her day in court is a drastic remedy. It is

not warranted in this case.

Wherefore, the Plaintiff prays that this Court will deny the Motion To Dismiss. 

Respectfully Submitted,

/s/ Brian P. Strength

JOCK M. SMITH (SMIO47)

BRIAN P. STRENGTH (STR052)

Attorneys for Plaintiff

OF COUNSEL:

COCHRAN, CHERRY, GIVENS & SMITH

Post Office Box 830419

Tuskegee, Alabama 36083

Tel: (334) 727-0060

Fax: (334) 727-7197

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CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the foregoing upon counsel listed below by

electronic notification on this the 4 day of September, 2007; th

Dennis Bailey

Rushton, Stakely, Johnston & Garrett, P.A.

P.O. Box 270

Montgomery, AL 36101

/s/ Brian P. Strength

OF COUNSEL

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