IN THE UNITED STATES DISTRICT COURT

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 others *

similarly situated; *

*

Plaintiff, *

vs. * CASE NO:02:06cv755-MHT

*

*

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 others *

similarly situated; *

*

Plaintiff, *

vs. * CASE NO:02:06cv908-MEF

*

*

WALTER WOOD, in his individual *

capacity, *

*

Defendant. *

MOTION TO STRIKE OR IN THE ALTERNATIVE MOTION

FOR LEAVE TO RESPOND

COMES NOW the plaintiff, by and through counsel, and states as follows:

1. Pursuant to the Order on Pretrial Hearing, the court directed the matter be

submitted on the current evidentiary record. The Order further allowed until November

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16, 2007 for the submission of additional evidence or briefs.

2. Pursuant to the Scheduling Order, Document 15, deadlines were established for

the submission of experts and other witnesses.

3. The defendant did not submit any expert witnesses.

4. On August 22, 2007 the defendant submitted his witness list, document 65. The

name of Danielle Lipow does not appear on defendant’s witness list.

5. On or about November 16, 2007 the defendant submitted the affidavit of

Danielle Lipow and attachments thereto.

6. Counsel for the plaintiff have reviewed the extensive affidavit of Ms. Lipow to

determine whether the same is being offered as expert testimony or otherwise. Regardless

of the affiant’s capacity, the plaintiff requests the same be stricken on the following

grounds:

a. the defendant failed to timely identify any expert and to otherwise comply with

the scheduling order regarding expert witnesses;

b. The plaintiff has not had an opportunity to depose any identified expert;

c. The defendant failed to timely identify the affiant as a witness;

d. The affiant’s characterizations and representations are not relevant to the issues

before the court;

e. The affiant is without personal knowledge regarding the issues before the court.

f. The defendant’s submission, circumventing the rules of civil procedure and the

scheduling order, is prejudicial to the plaintiff.

7. The plaintiff appreciates the extensive efforts of the Southern Juvenile

Defender Center and applauds efforts to, through every available means, improve the

Case 2:06-cv-00755-MHT-CSC Document 79 Filed 11/30/2007 Page 2 of 4
plight of children in the Alabama Juvenile Justice System. However, while the plaintiff

believes the affidavit on its face will not impact a liability decision, because the affidavit

contains erroneous and limited facts which, without response, might impact a decision

regarding liability in this matter, the plaintiff requests, absent the affidavit being stricken,

an opportunity to respond to the affidavit and attachments.

WHEREFORE THE PREMISES CONSIDERED, the plaintiff requests the court

strike the affidavit and attachments.

Submitted on this the 30th day of November, 2007.

s//Robert D. Drummond, Jr.

Robert D. Drummond, Jr. (DRU004)

Attorney for the Plaintiff

ASB-4619-O78R

323 De La Mare Ave.

Fairhope, AL 36532

251-990-6249

fax:251-650-1264

s//Michael J. Crow

Michael J. Crow (CRO039)

Attorney for the Plaintiff

BEASLEY. ALLEN, CROW,

METHVIN, PORTIS &MILES

P.O. 4160

Montgomery, AL 36103-4160

334-269-2343

CERTIFICATE OF SERVICE

I hereby certify that on this 30th day of November, 2007, the foregoing was

electronically filed with the Clerk of this Court thereby providing notice to counsel for the

defendant, T. Dudley Perry, Esq.

s//Robert D. Drummond, Jr.

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