IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA, 

NORTHERN DIVISION

J.B., a minor child, by and through his )

next friend, ADDIE WARD, on behalf of )

himself and all other similarly situated; )

) Case No: 2:06-CV-755-MHT

Plaintiff, )

)

vs. )

)

WALTER WOOD, in his individual )

capacity, )

)

Defendant. )

J.B., a minor child, by and through his )

next friend, ADDIE WARD, on behalf of )

himself and all other similarly situated; )

) Case No: 2:06-CV-908-MHT

Plaintiff, )

)

vs. )

)

WALTER WOOD, in his individual )

capacity, )

)

Defendant. )

RESPONSE TO PLAINTIFF’S MOTION TO STRIKE OR IN THE ALTERNATIVE

MOTION FOR LEAVE TO RESPOND

J. Walter Wood, Jr., in his individual capacity, responds to the Plaintiff’s motion as

follows:

Case 2:06-cv-00755-MHT-CSC Document 82 Filed 12/14/2007 Page 1 of 4
Danielle Lipow’s Affidavit Is Not An Expert Opinion Affidavit. The Plaintiff asserts,

without support, that Danielle Lipow’s affidavit provides expert opinion testimony. That

unsupported assertion is incorrect. 

Generally, an expert opinion is an “opinion”. Fed R. Evidence. 702. On the other hand

fact testimony is testimony based on personal knowledge. Fed. R. Evidence 602. Ms. Lipow’s

affidavit is not opinion testimony, but is fact testimony. Although it is clear that Ms. Lipow is an

expert in the field of juvenile justice, and although it appears that the Plaintiff recognizes the

inferences to be drawn from Ms. Lipow’s affidavit, the affidavit submits fact, not expert opinion.

Ms. Lipow’s affidavit submits a narrative of her personal dealings with J. Walter Wood, Jr., with

the Alabama Juvenile Justice System, and with other juvenile systems, with a view toward efforts

to serve juveniles like the Plaintiff. These facts shed light on the Plaintiff’s claims of deliberate

indifference. Ms. Lipow’s affidavit draws from her first hand observations and experiences of

the very system which is the subject of this case and relates to her own intent and the intent of the

Defendant, J. Walter Wood, Jr., with whom she has worked closely.

As stated above, Ms. Lipow’s affidavit does not submit opinion evidence, but even if it

did, lay opinion testimony is permissible under Fed. R. Evidence 701 and 704. Rule 701 was not

intended to prohibit lay witnesses testimony based upon “particularized knowledge gained from

years of experience within (a given) field”. Tampa Bay Shipbuilding v. Cedar Shipping, 320 F.

Ed 1213, 1223 (11 Cir. 2003). Thus, the Plaintiff’s argument is without merit. th

The Defendant Was Under No Obligation To Disclose Ms. Lipow’s Testimony. The

Plaintiff, who did not list ANY witnesses on ANY witness list–neither fact nor expert, contends

that Ms. Lipow’s affidavit should be stricken because her name was not on the a witness list. 

The argument is imprecise but it appears the Plaintiff believes the expert witness disclosure

Case 2:06-cv-00755-MHT-CSC Document 82 Filed 12/14/2007 Page 2 of 4
requirement bars Ms. Lipow’s affidavit. It does not. As discussed above, Ms. Lipow’s affidavit

is not offered as expert opinion evidence, but as fact testimony. Thus the Plaintiff’s argument is

without merit. 

Moreover, Ms. Lipow’s testimony was not contemplated before Plaintiff’s counsel made

scandalous and false accusations that the Defendant’s efforts to appropriately and timely place

juvenile within the system are fraudulent. Plaintiff’s counsel presented this case to this Court in

chambers as though the underlying goal is system reform. As Ms. Lipow’s affidavit shows, J.

Walter Wood, Jr. is engaged in a system wide reform effort, working with serious agents of

reform including the Annie E. Casey Foundation and the Southern Poverty Law Center, among

others. However, one of the aggravating sources of problems is, and has been, the string of

lawsuits similar to this one. Ms. Lipow’s affidavit provides the Court with factual insight into

the Defendant’s efforts to administer the Department of Youth Serves, to deal with the systemic

issues this case raises, and to lead a genuine reform effort designed to actually serve children’s

needs. 

The Affidavit Provides Facts Relevant to Liability. Plaintiff argues, again without

support, that the affidavit provides characterizations and representations not relevant to the issues

before the Court. That assertion is incorrect. Counsel for Plaintiff represented to this Court in

chambers that J. Walter Wood, Jr. is guilty of fraud and deliberately caused his client and other

delinquent youth to be held in detention without services. Ms. Lipow serves, among other

capacities, on the currently ongoing RFP Committee, which is the primary tool for predicting

capacity needs for the DYS system. That committee has recently begun its work. Ms. Lipow’s

first hand knowledge of the facts regarding that committee’s effort sheds light on the Plaintiff’s

claim that J. Walter Wood, Jr. is deliberately and indifferently causing youth to wait in detention.

Case 2:06-cv-00755-MHT-CSC Document 82 Filed 12/14/2007 Page 3 of 4
4

WHEREFORE, the undersigned submits that the Plaintiff’s motion is due to be denied.

Respectfully submitted

/s/ T, Dudley Perry, Jr.

T. Dudley Perry, Jr.

Bar Number: 3985-R67T

General Counsel

Alabama Dept of Youth Services

Post Office Box 66

Mt. Meigs, AL 36057

Telephone: (334) 215-3803

Fax: (334) 215-3872

E-Mail: dudley.perry@dys.alabama.gov

CERTIFICATE OF SERVICE 

 I hereby certify that I electronically filed the foregoing RESPONSE TO PLAINTIFF’S

MOTION TO STRIKE OR IN THE ALTERNATIVE MOTION FOR LEAVE TO

RESPOND with the Clerk of the Court using the CM/ECF system which will send notification

of such filing to the following:

Michael J. Crow, Esq.

Beasley, Allen

Post Office Box 4160

Montgomery, AL 36103-4160

Robert D. Drummond, Jr., Esq

Attorney At Law

323 De La Mare Avenue

Fairhope, AL 36532

Dated this the 14 day of December, 2007. th

/s/ T. Dudley Perry, Jr.

T. Dudley Perry, Jr.

General Counsel

Alabama Department of Youth Services

Case 2:06-cv-00755-MHT-CSC Document 82 Filed 12/14/2007 Page 4 of 4