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Kent A. Yalowitz
+1 836.8344 Direct
Kent.Yalowitz@apks.com
VIA ECF
The Honorable Andrew L. Carter, Jr.
United States District Court
Southern District of New York
40 Foley Square, Room 435
New York, NY 10007
Re: World of Boxing LLC et al. v. Wilder et al., No. 16-cv-04870 (ALC) (GWG)
Wilder et al. v. World of Boxing LLC et al., No. 16-cv-04423 (ALC) (GWG)
This firm represents the Defendants in No. 16 Civ. 44231 and the Plaintiffs in No. 16 Civ.
2
4870 (for purposes of last weeks trial, Defendants).
In summation, counsel may not state facts that are not in evidence and may not
misrepresent the record. Fineman v. Armstrong World Indus., 980 F.2d 171, 207 (3d Cir. 1992)
(finding improprieties sufficient for a new trial where plaintiffs counsel supplied facts not in
evidence); United States v. Suarez, 588 F.2d 352, 354 (2d Cir. 1978) (Broad latitude afforded
to counsel during summation does not mean, of course, that either counsel may refer to facts
that are not in the record, misstate the evidence, or allude to personal knowledge of guilt or
innocence); Levitant v. City of N.Y. Human Res. Admin., 914 F. Supp. 2d 281, 311-12
(E.D.N.Y. 2012) ([G]iven the lack of evidence in the trial record, counsels conduct in
referencing facts that were not established by evidence at trial and conduct by the defendant that
was not at issue in this case or had previously been excluded caused unfair prejudice to the
defendant, inflamed the jurors, and aroused their sympathy.).
Yet in summation that is exactly what plaintiffs counsel did, accusing Mr. Povetkin of
submitting a false errata sheet after he heard Dr. Krasavins deposition testimony, claiming:
1
World of Boxing LLC and Alexander Povetkin.
2
World of Boxing LLC, Alexander Povetkin and Andrey Ryabinskiy.
Counsel was improperly referring to evidence outside the record. The errata was never
admitted into evidence, and the testimony did not support the accusation that Mr. Povetkin
signed a document in which he said that the word doctor had been mistranslated and he had
actually said trainer. 3 Far worse, however, was counsels utterly false accusation that after
3
The testimony was:
Q. This is a document where you signed a document saying that
there were certain mistakes in the deposition transcript, correct?
[objection overruled]
A. I did not really understand the question.
Q. Well, you signed this document, correct?
A. Yes, my signature is there. I saw it.
Q. And you signed it on February 5th, the night before this trial
started, correct?
A. Yes, it turns out like that.
Q. Do you remember signing this document?
A. I don't really remember for sure. I signed a lot of papers.
Q. Do you remember that you told someone that when you said all
the vitamins were given to me in a transparent box by the doctor,
that there had been a mistake in translation, and what you had
meant to say was everything was given to you in a transparent box
Footnote continued on next page
Case 1:16-cv-04423-ALC-GWG Document 220 Filed 02/12/17 Page 3 of 14
he heard Dr. Krasavins testimony, he learned that Dr. Krasavin wasnt going to support him, he
had to change his story. Tr. 776. There is no dispute that Mr. Povetkins counsel, Ms. Kalivas,
prepared the errata sheet on Thursday, February 2; that Dr. Krasavin provided his deposition on
Friday, February 3; that Defendants provided Mr. Povetkins errata sheet on Sunday, February 5.
Thus, counsels statement accusing Mr. Povetkin of changing his story in response to
deposition testimony of Dr. Krasavin was not only unsupported by the evidence, but was actually
false, as plaintiffs counsel had acknowledged on the record.
After his improper account of Mr. Povetkins supposed attempt to alter his deposition
testimony, counsel compounded the prejudice by improperly expressing his opinion of
Mr. Povetkins truthfulness and ascribing motive in violation of the Courts earlier ruling barring
that issue from this trial:
Counsels personal opinion that Mr. Povetkin was not being honest was highly
improper. A lawyer may not express his or her personal opinion as to the truth or falsity of any
testimony or evidence. See Bellows v. Dainack, 555 F.2d 1105, 1108 (2d Cir. 1977) (Where
Plaintiffs counsel expressed personal opinions at summation about the credibility of defendants,
the court found the summation . . . sought to arouse undue passion and prejudice on the part of
the jury and clearly exceeded the bounds of propriety); Smith v. Piedmont Airlines, Inc., 728 F.
Supp. 914, 919 (S.D.N.Y. 1989) (finding it improper that counsel for plaintiff impermissibly
vouched for the credibility of plaintiffs physician when he expressed to the jury his personal
opinion about her character); N.Y. Rule of Professional Conduct 3.4(e) (A lawyer shall not
state a personal opinion as to the . . . the credibility of a witness).
Moreover, counsels argument that Mr. Povetkin was not being honest because this is an
important case to him was in direct violation of the Courts earlier rulings on this topic that
motive to falsify would not be allowed:
***
THE COURT: But I believe that you were the person who was
objecting to any notion that the defendants wanted to put out
anything like he wouldn't risk his career by micro-dosing at this
small level because that small level that would be showing up there
wouldn't give him any benefit, and he wouldn't risk his career by
micro-dosing at this level. Wouldn't that be fair comment to start
re-going down this road? And that's something that you very
strenuously didn't want to get into.
During summation, counsel began to assert his missing witness theory: The people
who supposedly had provided the vitamins or whatever it was. Tr. 777. Following objection,
counsel admitted at sidebar that he was about to ask the jury Wheres the trainer and wheres
the manager. Tr. 778. The Court forbade it. Tr. 778-82. Then, in defiance of the Courts
order, counsel put a board only a few feet from the jury with the question typed out in capital
letters: WHERE IS MR. POVETKINS TRAINER? See Tr. 788 (But heres other questions
you should ask yourselves). (A photograph of the board is included as an Addendum at the end
of this letter.)
Case 1:16-cv-04423-ALC-GWG Document 220 Filed 02/12/17 Page 7 of 14
This drew another objection, and Mr. Burstein left the board sitting on its easel when he
walked back into the robing room. It would have remained displayed to the jury during the
sidebar had defendants counsel not taken it down. See Tr. at 789, 799.
The attempt to get the jury to draw an inference from the absence of the trainer was
improper.
Plaintiffs counsel asked the jury to draw negative inferences about Defense counsels
conduct of discoverybased on the improper hearsay testimony of Dr. Butch:
Mr. Yalowitz wants to talk about Dr. Butch not having seen the
second samples, but why? Because they did not want full access to
the second sample, to the three negative tests. They were not
prepared to allow my client and me to actually see what the truth
is, to get access to it. You can draw a very strong inference from
that.
Tr. 760; 789 (Why did they initially refuse to give Dr. Butch the information he needed?).
The entire basis for this assertion was an obviously improper hearsay statement from
Dr. Butch, which counsel read and showed to the jury: And were you told why they weren't
available? It was indicated to me that the other side was unwilling to allow it. Tr. 759.4 At
sidebar, counsel even misrepresented the record to the Court, falsely claiming that this testimony
had come in without objection. Compare Tr. 790 (you didnt object to it) with Tr. 424
(objections overruled).
4
Dr. Butch was incorrect about the course of discovery. See Tr. 790-91 (Defendants concern
with authorizing the release of the vial numbers corresponding to the reported negative samples
was not whether we would allow it so much as whether we were going to get the evidence at the
same time as Plaintiffs).
Case 1:16-cv-04423-ALC-GWG Document 220 Filed 02/12/17 Page 8 of 14
Similarly, plaintiffs counsel falsely asserted that Dr. de Boer didnt give you all of his
testimony because he admitted he had testified at other proceedings but somehow didn't tell us
about that and why is that? Tr. 767. In fact, Dr. de Boers report correctly included a list of all
other cases in which, during the previous 4 years, the witness testified as an expert at trial or by
deposition. Fed. R. Civ. P. 26(b)(2)(B)(v); see Tr. 768-68. Yet Plaintiffs counsel persisted on
this issue even after learning the true facts at sidebar, and even cut the witness off when he was
trying to explain his answer to the improper questions on re-cross (Tr. 770).
Encouraging the jury to draw an inference of Defendants intent from pre-trial discovery
disputes is improper, particularly as Defendants intent is not as issue in this trial. Brown v.
Walter, 62 F.2d 798, 799 (2d Cir. 1933) (L. Hand, J.) (finding misconduct and unfair[ness] to
the last degree where plaintiffs summation suggested that the defense had been fabricated by
the insurer without the slightest support in the evidence).
So you have Mr. Yalowitz, and he's a fine lawyer and he's working
hard for his client, but when you don't have the facts,
unfortunately, sometimes what you have is not the most accurate
recounting of what the evidence is. Tr. 762.
In fact, counsel referred to Mr. Yalowitz by name a dozen times in his summation, and
even was admonished by the Court (at sidebar) to cease these attacks on counsel. Tr. 792.
Denigrating defense counsel is improper and can prejudice the client by tainting the
jurys consideration of the evidence offered by the client. Koufakis v. Carvel, 425 F.2d 892, 904
(2d Cir. 1970) (Mr. Bergs summation was replete with improper personal references to
himself, and to Mr. Weisman, trial counsel for the appellants. It is enough to say in general that
counsels remarks were in reckless and purposeful disregard of all the proprieties; they went far
beyond the permissible limits of fair comment on what was before the jury and dealt altogether
too much with matters and considerations outside the record which were obviously intended to
prejudice the appellants in the eyes of the jury and seek their favor for the plaintiff.).
Counsel repeatedly misstated the law by attempting to shift the burden of proof to
defendants throughout his summation. For instance, he asked the jury to consider: Where is the
Case 1:16-cv-04423-ALC-GWG Document 220 Filed 02/12/17 Page 9 of 14
proof that Mr. Povetkin even took Meldonium in September 2015? Tr. 772-73. This was not an
isolated slip-up:
But he's never proven that he explicitly knows he didn't take
Meldonium, because the dots have never been connected. Tr. 788.
They have no witness or any data to support the notion that he last
took it in 2015. Tr. 797.
These were blatantly incorrect statements of the burden of proof in this case. The Court
even admonished counsel (at sidebar): They don't have a burden in this case. Intent is not an
issue. Yet Plaintiffs summation attempted to leave the jury with the misimpression that
Defendants need to prove exactly when Mr. Povetkin took Meldonium in order to prevail.
Taken together, the extensive improprieties during summation exacerbates the prejudice
caused by any one improper remark. There is particular concern here because Plaintiffs offered
no substantive evidence in their case in chief of any theory beyond Mr. Povetkins alleged
micro-dosing after the supposedly negative April 7, 8 and 11, 2016 testsa theory that no
reasonable jury could accept after Plaintiffs sole witnesses (two experts) admitted that they
failed to consider the UCLA laboratorys own drug testing reports, which admittedly did not
report the absence of Meldonium in Mr. Povetkins urine samples. Ironically, UCLA had these
reports all along, while Defendants had to subpoena them and received them only a few weeks
before trial.
Much of the misconduct cannot now be cured, because instructions concerning such
misconduct will only draw further unwarranted attention to the improperly injected issue. For
example, Mr. Povetkins motives to lie should was not supposed to be an issue, but at this point,
how can any discussion of it inure to Mr. Povetkins benefit? Similarly, the bell cannot be un-
rung from Mr. Bursteins improper smearing of defense counsels motives and honesty. And the
misstatements attempting to shift the burden of proof were pervasive, not isolated, so that a
curative instruction will likely be inadequate.
Case 1:16-cv-04423-ALC-GWG Document 220 Filed 02/12/17 Page 10 of 14
A. The Trainer
1. Reopen The Evidence. The Court should reopen the evidence to allow
Mr. Povetkins trainer, Andrey Kozlov, to testify by video tomorrow. Plaintiffs
opposed both deposition and video testimony of Mr. Kozlov, and the Court reserved
decision (Tr. 156-57). Now that it has become an issue in summation, the Court
should permit the testimony.
2. Uncalled Witness Instruction. Alternatively, the Court should give a very strong
curative instruction:
There are several persons whose names you have heard during the
course of the trial but who did not appear here to testify, and one or
more of the attorneys has referred to their absence from the trial. I
instruct you that each party had an equal opportunity or lack of
opportunity to call any of these witnesses. Therefore, you should
not draw any inferences or reach any conclusions as to what they
would have testified had they been called. Their absence should
not affect your judgment in any way.
This instruction is adopted from Sand, Modern Federal Jury Instructions 75-4 and the
Fifth Circuit Civil Jury Instruction 2.9 (reprinted in Sand and available at
http://www.lb5.uscourts.gov/juryinstructions/). The inclusion of the Fifth Circuits direct
and pointed instruction is necessary because counsel plaintiff affirmatively blocked the
receipt of Mr. Kozlovs testimony, was ordered by the Court not to raise his absence in
summation, disobeyed the Courts order by putting up a board directly in front of the jury
with the printed question WHERE IS THE TRAINER, and attempted to leave that
board in the jurys view during a lengthy sidebar. As the Fifth Circuit explains in its
comments to its uncalled witness pattern instruction, this instruction is appropriate only
if the issue arises during closing argument or at some other time in trial. Comment to
Fifth Circuit Civil Jury Instruction 2.9. As the Ninth Circuit has explained, [w]hen a
court gives a curative instruction to the jury, the instruction should specifically address
the improper argument, rather than state a boilerplate rule regarding evaluation of
evidence. For example, a belated instruction that the jurors are the sole judges of the
credibility of the witnesses was insufficient to neutralize the harm caused when the
prosecutor vouched for government witnesses. Ninth Circuit Manual on Jury Trial
Procedures 3.20.E at 107 (2013 ed.) (discussing and quoting United States v. Kerr, 981
F.2d 1050, 1053-54 (9th Cir. 1992)) (available at
http://www.ca9.uscourts.gov/district/guides/MJTP.pdf).
3. Habit Instruction. Finally, the Court should instruct the jury that it may consider the
evidence of Mr. Povetkins practice:
The injection into the summation of the pretrial discovery process was improper.
Therefore, the Court should provide the following relief at this point:
1. The Court should strike the hearsay testimony of Dr. Butch. Hearsay is inadmissible
and no exception to the hearsay rule permitted counsel to elicit Dr. Butchs testimony,
let alone emphasize it in closing by reading it and displaying it. This improper
testimony should not be put before the jury again.
2. The Court should give the following curative instruction, following its discussion of
depositions:
The Court should clarify its burden of proof instruction by adding the following curative
instruction, following its statement that Plaintiffs have the burden of proving their case by a
preponderance of the evidence:
5
Compare United States v. Bubar, 567 F.2d 192, 200 (2d Cir. 1977) (approving then-District
Judge Newmans curative instruction: (T)o whatever extent the argument of government
counsel called upon any defendant to testify or to explain away any evidence, to whatever extent
that may have occurred, such argument was improper, uncalled for and illegal.).
Case 1:16-cv-04423-ALC-GWG Document 220 Filed 02/12/17 Page 13 of 14
Counsels intentional mischaracterization of the record concerning the errata sheet should
also be addressed in the Courts instructions. In its instruction on what is or is not evidence,
the Court should provide an additional example following the when did you stop beating your
wife example from the pattern jury instructions.
Respectfully yours,
ADDENDUM: