DOCUMENT 32

ELECTRONICALLY FILED
8/12/2021 8:31 AM
01-CV-2021-000161.00
CIRCUIT COURT OF
JEFFERSON COUNTY, ALABAMA
JACQUELINE ANDERSON SMITH, CLERK
IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA
BIRMINGHAM DIVISION

DUSTIN VANN, et al., )

)
Plaintiffs, )
)
v. ) CASE NUMBER: CV-2021-00161
)
HOMEWOOD BOARD OF EDUCATION, )
)
Defendant. )

DEFENDANT’S MOTION TO STRIKE PLAINTIFFS’

AFFIDAVIT OF DUSTIN VANN

The Homewood Board of Education (the “Board”) moves this Court to strike the affidavit

of Dustin Vann (Doc. 17). In support of this motion, the Board states as follows:

1. Other than Mr. Vann’s statement that both of his children are enrolled at Edgewood

Elementary School, his affidavit is comprised of his opinions on scientific theory that he has

apparently researched and is outside his personal knowledge.

2. Rule 602 of the Alabama Rules of Evidence makes clear that all testimony must be

based on personal knowledge. (“A witness may not testify to a matter unless evidence is

introduced sufficient to support a finding that the witness has personal knowledge of the matter.”).

3. Mr. Vann is a named plaintiff in this lawsuit and the parent of Homewood students.

Accordingly, he is testifying as a fact witness. Nothing in his affidavit suggests that he is an expert

on the efficacy of masks in preventing COVID-19, the psychological effects of wearing masks, or

the transmissibility of COVID-19 in children, which are the subjects about which his affidavit

offers opinions and inferences. See Doc. 17.

4. Because he has not been offered as an expert and no showing has been made that

he is qualified to testify as an expert, the exceptions made for the facts or data supporting expert
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testimony under Rule 703 do not apply to Mr. Vann’s affidavit. See Ala. R. Evid. 703. Instead,

“the witness’s testimony in the form of opinions or inferences is limited to those opinions or

inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear

understanding of the witness’s testimony or the determination of a fact in issue.” Ala. R. Evid.

701.

5. Mr. Vann’s affidavit contains no showing that his opinions are rationally based on

his own perception, or helpful to a clear understanding of his testimony or a factual determination

at issue. Instead, his affidavit is comprised of a series of blanket statements and excerpts of

miscellaneous external sources that, other than his own review of them, appear to be well outside

the realm of his own personal knowledge.

6. For these reasons, the testimony in Mr. Vann’s affidavit (other than the one

statement regarding his children’s enrollment) amounts to inadmissible hearsay (see Ala. R. Evid.

802), and the Board respectfully requests that this Court strike the affidavit from the evidentiary

record.

Respectfully submitted

s/Anne Knox Averitt

Anne Knox Averitt (asb-2668-n76m)

s/Anne R. Yuengert
Anne R. Yuengert (asb-4964-g64a)

BRADLEY ARANT BOULT CUMMINGS LLP

One Federal Place
1819 Fifth Avenue North
Birmingham, AL 35203-2119
Telephone: (205) 521-8000
Email: ayuengert@bradley.com
aaveritt@bradley.com

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CERTIFICATE OF SERVICE

I hereby certify that on August 12, 2021, I electronically filed the foregoing with the
Clerk of the Court using the AlaFile system which will send notification of such filing to the
following:

William H. McGowen, III

3415 Independence Drive, Suite 220
Birmingham, AL 35209
billy@giving4life.com

and I hereby certify that I have mailed by United States Postal Service the document to the
following non-AlaFile participants:

None

s/Anne R. Yuengert
Anne R. Yuengert

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