Attorneys battle over experts in Povetkin-Wilder case
February 10, 2017
This week Deontay Wilder and Alexander Povetkin went to trial to determine whose fault it was that cancelled their fight in Russia this past May.
The sole issue to be decided at trial is whether Povetkin took Meldonium after January 1, 2016, the date that it was banned by WADA.
The trial is a battle of the experts with each side arguing about the admissibility of testimony and evidence. The science of determining Meldonium in the system is key. Povetkin admits to taking Meldonium in 2015 as prescribed by a physician. However, he denies taking it after 2016. WADA banned the substance on January 1, 2016.
Four VADA tests by Povetkin leading up to their anticipated fight in April 2017 occurred. Povetkin’s VADA tests on April 7, 8 and 11, 2017 came up negative. However, an April 27, 2017 test showed Meldonium. World of Boxing claims that the Meldonium are traces from his 2015 use.
Trial began this past Monday.
Per a pretrial order dated January 31, 2017, the parties included specifics related to trial including experts. The experts were to have submitted reports, the basis of their testimony, prior to the start of trial. The Wilder legal team retained Anthony Butch, Ph.D. to testify about the testing of banned substances and the result of Povetkin’s tests as it relates to detection of Meldonium. Essentially, Povetkin’s test results reveal he took Meldonium some time between April 11 and his last VADA test of April 27, 2016. They also named Daniel Eichner, Ph.D. as a possible expert to testify regarding the positive test results. He was added after World of Boxing added Dr. Douwe de Boer.
The World of Boxing team included several experts regarding the detection of Meldonium with the conclusion that Povetkin did not take the drug post-January 1, 2016. This included Dr. Boris Simkhovich and Dr. de Boer. Notably, Dr. de Boer was a late addition to the expert list and submitted a report which Wilder’s attorneys opposed.
On Thursday night, attorneys for Deontay Wilder requested to call Dr. Anthony Butch as a “very brief rebuttal witness” as it relates to World of Boxing’s expert, Dr. de Boer. The claim to use Dr. Butch is that Dr. de Boer disclosed an “entirely new theory of the case” during his trial testimony. Additionally, Wilder’s attorneys wanted to call Dr. Boris Simkhovich as a rebuttal witness. However, Dr. Simkohovich was a designated expert of World of Boxing but was not called by the World of Boxing when they put on its case.
The new revelation addresses, according to Wilder’s attorneys, the reasons why Povetkin’s April 7, 8 and 11, 2016 urine samples had no detection of Meldonium but there was detection of Meldonium in his April 27, 2016 test: ion suppression.
Dr. de Boer was a late add as an expert by Wilder’s legal team. The presiding magistrate, Judge Gabriel Gorenstein allowed Dr. de Boer to testify however he would have to submit to a deposition prior to trial as well as having an expert rebut the report.
The testimony from Dr. de Boer suggests due to ion suppression, Meldonium was not detected in the first three tests of April because the method of analyzing (mass spectrometer) did not pick up the Meldonium due to a competing molecule suppressing the Meldonium molecules. But, the April 27th test contained residual Meldonium which it was able to pick up.
The claim is that Dr. de Boer’s theory is based on the late production of Dr. Butch’s raw data. Despite submitting to a deposition, Dr. de Boer was precluded from answering questions about the report at his deposition per instruction from the Magistrate as the two sides butted heads over the issue.
They also wanted to call Dr. Simkhovich as a witness as Wilder’s side believed that his testimony was contrary to that of Dr. de Boer’s testimony which would seemingly show a flaw in World of Boxing’s case.
Attorneys for World of Boxing argue that Wilder’s problems are his own as the Court gave Wilder an option of deposing Dr. de Boer on Feb 1 or 2 or postpone the trial. Wilder opted to go to trial and depose Dr. de Boer. They also argue that Dr. de Boer’s report and data were provided to Wilder’s side prior to the deposition and they could have asked questions about it. They also argue that Dr. Simkhovich cannot be used as a witness as he was not called by World of Boxing and would be inadmissible.
The legal fights over inclusion of expert testimony occurs a lot and certainly each side wants to preserve their right to an appeal if needed. The credibility of the experts will be key and the efforts to rebut testimony is a way for the legal teams to get the last say before a jury.