Case 1:16-cv-04423-ALC-GWG Document 255 Filed 04/03/17 Page 1 of 4

JUDD BURSTEIN, P.C.

ATTORNEYS AT LAW

JUDD BURSTEIN* 5 COLUMBUS CIRCLE

PETER B. SCHALK** 1790 BROADWAY
NEW YORK, NEW YORK 10019
TEL: (2 I 2) 974-2400
G. WILLIAM BARTHOLOMEW** FAX: (212) 974-2944
ALI R. JAFFERY** WWW.BURLAW.COM

'ALSO ADMITTED IN CONNECTICUT 12 OLD HILL FARMS ROAD

"ALSO ADMITTED IN NEW JERSEY WESTPORT, CONNECTICUT 06880
TEL: (203) 226-4823

April 3, 2017

VIA ECF AND EMAIL

The Honorable Andrew L. Carter, Jr.
United States District Court
Southern District of New York
40 Foley Square
New York, New York 10007

Re: World of Boxing LLC, et al. v. Wilder, et aI., No. 16-cv-04870 (ALC) (GWG);
Wilder, et al. v. World of Boxing LLC, et aI., No. 16-cv-04423 (ALC) (GWG)

Dear Judge Carter:

I am a principal of Judd Burstein, P.C., counsel for the Wilder Parties in the above-referenced
actions ("Plaintiffs"). I write in opposition to the March 27, 2017 letter ("3/27117 Letter") from
counsel for the WOB Parties' ("Defendants") seeking to supplement their motion for judgment as
a matter of law, or alternatively, a new trial, based upon a recent study from the Cologne Laboratory,
which is the same lab that performed the Tretzel Study that this Court is familiar with from the trial
of this matter. (See Exhibit A to the 3/27117 Letter, which is a publication from the Journal of
Pharmaceutical and Biomedical Analysis, titled "The atypical excretion profile of meldonium:
Comparison of urinary detection windows after single - and multiple - dose application in healthy
volunteers.") (The "Feb. 6 Paper"). Defendants are not entitled to any relief based upon the Feb. 6
Paper for two fundamental reasons: (a) they made no showing as to why they were diligent in failing
to access it during trial, and (b) the Feb. 6 Paper is not even helpful to Defendants' case.

In the first instance, as Defendants acknowledge, the Feb. 6 Paper states that "it was available
online February 6,2017." (See 3/27117 Letter at p. 5). Accordingly, Defendants could have accessed
the Feb. 6 Paper as of the first day of trial. If they had done so, Defendants would have been able
to make use of the Feb. 6 Paper, because Anthony Butch, Ph.D., one of Plaintiffs' expert witnesses,
testified on February 7,8 and 10,2017, and Plaintiffs' other expert witness, Daniel Eichner, Ph.D.,
testified on February 8, 2017. Nevertheless, Defendants make no excuse for their failure to discover
the Feb. 6 Paper until long after it was made available on line. (See 3/27117 Letter at p. 5, where
counsel simply writes that "Defendants learned of the [Feb. 6 Paper] last week.").

Defendants' failure to discover the Feb. 6 Paper until the week of March 20,2017 is all the
more inexcusable, considering that Defendants' attorneys pressed both of Plaintiffs , experts during
their depositions as to whether they had contacted the Cologne Lab to inquire about any new studies
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JUDD BURSTEIN. P. C.

The Honorable Andrew L. Carter, Jr.

April 3, 2017
Page 2

that might be forthcoming concerning meldonium. (See Exhibit 1 hereto, relevant portions of the
transcript of Dr. Butch's January 17, 2017 deposition, at pp. 213-14; see also Exhibit 2 hereto,
relevant portions of the transcript of Dr. Eichner's January 19,2017 deposition, at pp. 126-27). In
this connection, Defendants' attorney specifically asked Dr. Eichner: "I'm curious why you didn't
check up on [the Cologne Lab's work on meldonium], yeah?" (Id., at 127: 6-7). Accordingly,
Defendants' attorneys were on notice that they had the opportunity to make inquiries of the Cologne
Lab, considering that they effectively accused Plaintiffs' experts of being careless by not doing so.
At a minimum, Defendants could have been keeping an eye out for any new studies on meldonium
from the Cologne Lab, or any other source.

Even more important than Defendants' failure to make a showing of diligence, the Feb. 6
Paper does not even support Defendants' position at trial. To the contrary, in some
circumstances, the new data actually undermines Defendants' arguments. In this regard, I have
annexed hereto as Exhibits 3 and 4 respectively, declarations from Dr. Butch dated March 29,2017,
and from Dr. Eichner dated March 30,2017. They both confirm that the data and conclusions from
Feb. 6 Paper do not support Povetkin' s argument that there could have been an innocent explanation
for his April 27, 2016 positive test for meldonium. See, e.g., Exhibit 3 hereto at ~ 5: "the new
findings in the Feb. 6 Paper do not support Mr. Povetkin's claim, and actually undermine his
argument that residual detection of Meldonium could be possible for as long as 7 months after
ingestion." I will not address the sworn conclusions of Plaintiffs' experts about the Feb. 6 Paper in
detail, and instead respectfully refer the Court to Exhibits 3 and 4 hereto, the findings of which are
incorporated herein by reference.

In light of the above, the Feb. 6 Paper, does not provide a basis for post-verdict relief.
Motions for a new trial "based on the post-trial discovery of evidence are not favored." Zink
Commc'nsv. Elliott, No. 90 CIV. 4297 (CSH), 1990 WL 170469, at *1 (S.D.N.Y. Oct. 26,1990)
(Haight, J.) (citing Mittlieder v. Chicago & N WRy, Co., 441 F.2d 52 (8th Cir.1971)). Before a
new trial may be granted "on the basis of newly discovered evidence, there must be a showing that
the alleged newly discovered evidence was discovered since the trial; facts from which the court may
infer reasonable diligence on the part of the moving party; that the evidence is not merely cumulative
or impeaching; that the evidence is material; and the evidence is of such a character that on a new
trial it will probably produce a different result." Zink Commc 'ns, 1990 WL 170469, at * 1 (citing
Ope Shipping, Ltd. v. Underwriters at Lloyds, 100 F.R.D. 428,432 (S.D.N.Y.1983)).

"Newly discovered evidence" is "evidence of facts in existence at the time of trial of which
the party seeking a new trial was justifiably ignorant." Campbell v. American Foreign s.s. Corp.,
116 F.2d 926,928 (2d Cir. 1941). Justifiable ignorance "implicates considerations of due diligence.
If the newly discovered evidence relied upon was available or by the use of reasonable diligence
could have been available at trial to the moving party, that evidence cannot support an order for a
new trial." Zink Commc 'ns, 1990 WL 170469, at *1 (citing Mayer v. Higgins, 208 F.2d 781, 783
(2d Cir .19 53)). The narrow exception to this rule provides that "to prevent a 'grave miscarriage of
justice,' a party failing to exercise proper diligence may obtain a new trial based on newly discovered
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JUDD BURSTEIN. P. C.

The Honorable Andrew L. Carter, Jr.

April 3, 2017
Page 3

evidence, but to invoke that exception, the evidence must be 'practically conclusive. '" Zink
Commc 'ns, 1990 WL 170469, at *1 (citing Ope Shipping Ltd., 100 F.R.D., at 432).1

Defendants had a fair trial in February of this year. They could have used the Feb. 6 Paper
at the trial if they had been diligent, and if they had used it, there is absolutely no reason to suspect
that there would have been a different result. Therefore, Defendants do not meet their burden of
making a "prima facie showing that a different result should have been reached initially." Zink
Commc 'ns, 1990 WL 170469, at *2 (citing Ope Shipping Ltd., 100 F.R.D., at 432).

Importantly, the law recognizes that litigation requires finality, unlike scientific knowledge,
which is constantly evolving:

The requirements and realities of the courtroom are not those of the laboratory. See
Ferebee v. Chevron Chemical Co., 237 U.S.App.D.C. 164, 170-71,736 F.2d 1529,
1535-36 (allowing recovery without scientific certainty), cert. denied, 469 U.S. 1062,
105 S.Ct. 545, 83 L.Ed.2d 432 (1984). Although science is a constantly evolving
process, the law depends upon a high level of certainty once an outcome has been
determined. A trial can be no more than a resolution of an immediate dispute on the
basis of present knowledge; its outcome must turn upon the teachings of science as
understood at the time of trial as best can be discerned through the presentations of
the parties. Where scientific facts are at issue, it is not unexpected, given the nature
of the process, that the passage of time will bring forth further scientific data and
inquiry relating to the ultimate scientific fact at issue. To reopen the trial's
determination of scientific truth, however, runs squarely into the fundamental
principle of certainty.

Merrell Dow Pharm., Inc. v. Oxendine, 649 A.2d 825,831 (D.C. 1994).

In Zink Commc 'ns, the defendants moved under Rule 59 for a new trial on the
grounds of newly discovered evidence, proffering the testimony of three prospective witnesses
whose testimony would have allegedly changed the outcome of the case. In denying the motion, the
Court held that "the threshold question is whether defendants have demonstrated reasonable
diligence in failing to interview and proffer these witnesses' testimony until after the evidence had
closed and the Court had decided the case." Zink Commc 'ns, 1990 WL 170469, at *3. The Court
further held that there was no evidence that counselor their firm made any effort to contact these
witnesses until after the trial had concluded. Id. Finally, the Court refused to accept that "the
combined resources of the Kaye, Scholer firm and the Goodson office ... could not have managed
the interview of these three witnesses after [the plaintiffs witness] identified them during her
September 14 testimony." Id. So too here, Arnold & Porter Kaye Scholer had the resources to keep
tabs on any new papers issued by the Cologne Lab on meldonium following the Tretzel study.
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JUDD BURSTEIN. P. C.

The Honorable Andrew L. Carter, Jr.

April 3, 2017
Page 4

Lastly, Defendants cast various unfounded aspersions that Plaintiffs' experts might have
known about the Feb. 6 Paper at the time they testified at trial, but kept it a secret. Defendants are
incorrect. Both Dr. Butch and Dr. Eichner have attested under oath that they did not learn about the
Feb. 6 Paper until after the trial. (Exhibit 3 hereto at ~ 3; Exhibit 4 hereto at ~ 3). In fact, Dr.
Eichner submitted exhibits consisting of contemporaneous emails showing that he only learned about
the existence of the Feb. 6 Paper on February 25, 2017, when he came upon an abstract about it
while doing online research. (Exhibit 4 hereto at ~ 3). Dr. Eichner then emailed Dr. Butch that same
day, asking if he could access the Feb. 6 Paper. (See Exhibit A to Exhibit 4 hereto, which is Dr.
Eichner's February 25, 2017 email to Dr. Butch). Dr. Butch was not even on notice of the Feb. 6
Paper until he received Dr. Eichner's February 25, 2017 email. (Exhibit 3 hereto at ~ 3).
Additionally, both Dr. Butch and Dr. Eichner confirmed that they did not raise the Feb. 6 Paper
with Plaintiffs' counsel precisely because it had no impact on their conclusions. (Exhibit 3
hereto at ~ 9; Exhibit 4 hereto at ~ 5).

WHEREFORE, the relief requested in Defendants' 3/27117 Letter should be denied in full;
together with such other and further relief as this Court deems just and proper.

Respectfully,

~halk
Encl.
cc: Kent A. Yalowitz, Esq. (Via ECF; w/encl.)
Tanya E. Kalivas, Esq. (Via ECF; w/encl.)